California State Motor Vehicle and Nonroad Engine Pollution Control Standards; Truck Idling Requirements; Notice of Decision, 9239-9250 [2012-3690]

Download as PDF Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. The ICR provides a detailed explanation of the Agency’s estimate, which is only briefly summarized here: Estimated total number of potential respondents: 4,589 for this ICR period. Frequency of response: Every five years, unless the facilities need to update their previous submission earlier to comply with a rule requirement. Estimated total average number of responses for each respondent: One. Estimated total annual burden hours: 93,982 Hours including burden for implementing agencies. Estimated total annual costs: $9,785,371.00. There are no capital or operating and maintenance costs associated with this ICR since all sources are required to submit RMPs online using the electronic reporting system, RMP*eSubmit. What is the next step in the process for this ICR? EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another Federal Register notice pursuant to 5 CFR 1320.5(a)(1)(iv) to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB. If you have any questions about this ICR or the approval process, please contact the technical person listed under FOR FURTHER INFORMATION CONTACT. Dated: February 8, 2012. R. Craig Matthiessen, Acting Director, Office of Emergency Management. [FR Doc. 2012–3694 Filed 2–15–12; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY srobinson on DSK4SPTVN1PROD with NOTICES [FRL–9633–1] California State Motor Vehicle and Nonroad Engine Pollution Control Standards; Truck Idling Requirements; Notice of Decision Environmental Protection Agency (EPA). ACTION: Notice of Decision. AGENCY: EPA has granted the California Air Resources Board (CARB) SUMMARY: VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 its request for a waiver of preemption and authorization to adopt and enforce California’s Truck Idling Requirements. CARB’s Truck Idling Requirements apply to new California-certified 2008 and subsequent model year heavy-duty diesel engines in heavy-duty diesel vehicles with a gross vehicle weight rating over 14,000 pounds, and to in-use diesel-fueled commercial vehicles with gross vehicle weight ratings over 10,000 pounds that are equipped with sleeper berths. 9239 FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor, Compliance and Innovative Strategies Division, Office of Transportation and Air Quality, U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone: (202) 343–9949. Fax: (202) 343–2800. Email: knapp.kristien@epa.gov. SUPPLEMENTARY INFORMATION: I. Background A. California’s Truck Idling Requirements By letter dated May 9, 2008, CARB ADDRESSES: EPA has established a informed EPA that it had adopted its docket for this action under Docket ID Truck Idling Requirements, and EPA–HQ–OAR–2010–0317. All requested that EPA confirm that certain documents relied upon in making this provisions of the requirements are not decision, including those submitted to preempted by sections 209(a) of the EPA by CARB, and public comments, Clean Air Act (Act); certain provisions are contained in the public docket. are conditions precedent pursuant to Publicly available docket materials are section 209(a) of the Act; 1 certain available either electronically through provisions are within-the-scope of www.regulations.gov or in hard copy at previous waivers and authorizations the Air and Radiation Docket in the EPA issued pursuant to sections 209(b) and Headquarters Library, EPA West 209(e) of the Act, respectively; and at Building, Room 3334, located at 1301 least one provision requires and merits Constitution Avenue NW., Washington, a full authorization pursuant to section DC. The Public Reading Room is open 209(e) of the Act.2 CARB’s 2008 Truck to the public on all federal government Idling Requirements became effective working days from 8:30 a.m. to 4:30 California state law on November 15, p.m.; generally, it is open Monday 2006, amending title 13, California Code through Friday, excluding holidays. The of Regulations (CCR) sections 1956.8, telephone number for the Reading Room 2404, 2424, 2425, and 2485.3 is (202) 566–1744. The Air and CARB’s Truck Idling Requirements Radiation Docket and Information consist of three elements: (1) ‘‘New Center’s Web site is https://www.epa.gov/ engine requirements’’ that require new oar/docket.html. The electronic mail California-certified 2008 and subsequent (email) address for the Air and model year on-road diesel engines in Radiation Docket is: a-and-rvehicles with a gross vehicle weight Docket@epa.gov, the telephone number rating (GVWR) greater than 14,000 is (202) 566–1742, and the fax number pounds (i.e., heavy-duty diesel vehicles is (202) 566–9744. An electronic version or ‘‘HDDV’’s) be equipped with a system of the public docket is available through that automatically shuts down the the federal government’s electronic engine after five minutes of continuous public docket and comment system. idling; (2) ‘‘sleeper truck requirements’’ You may access EPA dockets at https:// that require the operator of a sleeper www.regulations.gov. After opening the truck to manually shut down the engine www.regulations.gov Web site, enter after five minutes of continuous idling; EPA–HQ–OAR–2010–0317 in the ‘‘Enter 1 EPA can confirm that a California requirement Keyword or ID’’ fill-in box to view is a condition precedent to sale, titling, or documents in the record. Although a registration, if: (1) the requirements do not part of the official docket, the public constitute new or different standards or docket does not include Confidential accompanying enforcement procedures, and (2) the requirements do not affect the basis for the previous Business Information (‘‘CBI’’) or other waiver decision. information whose disclosure is 2 California Air Resources Board (CARB) Letter to restricted by statute. EPA regarding, ‘‘Requirements to Reduce Idling Emissions From New and In-Use Trucks, Beginning EPA’s Office of Transportation and Air Quality (‘‘OTAQ’’) maintains a Web in 2008; Request for Confirmation That Certain Requirements are not Subject to Preemption Under page that contains general information Clean Air Act Section 209(a) or Fall Within the on its review of California waiver Scope of Previously Granted Waivers and requests. Included on that page are links Authorizations, and Request for New Authorization to prior waiver Federal Register notices, Under Section 209(e)(2),’’ EPA–HQ–OAR–2010– 0317–0001. some of which are cited in today’s 3 See California Air Resources Board (CARB), notice; the page can be accessed at ‘‘Final Regulation Order,’’ EPA–HQ–OAR–2010– 0317–0011. https://www.epa.gov/otaq/cafr.htm. Petitions for review must be filed by April 16, 2012. DATES: PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\16FEN1.SGM 16FEN1 9240 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES and (3) ‘‘alternative technology requirements’’ that establish in-use performance standards for HDDV operators who use alternative technologies to supply power for truck cab or sleeper berth climate control and/ or other on-board accessories that otherwise would have been generated by the continuous idling of the truck’s main engine.4 CARB requests, first, that EPA confirm that its new engine requirements are not preempted by section 209(a) of the Act, or that they are other conditions precedent required prior to the initial sale of new heavyduty diesel engines. Alternatively, CARB requests that if EPA concludes that the new engine requirements are preempted by section 209(a) of the Act, then EPA confirm that the requirements are within the scope of EPA’s previously issued waiver for 2007 and later model year heavy-duty diesel engines. Second, CARB requests that EPA confirm that its sleeper truck requirements are purely operational controls, which are not preempted by section 209(a) of the Act. Third, CARB requests the following determinations from EPA with respect to its alternative technology requirements: (1) A within-the-scope confirmation for its requirement that an alternative power supply (APS) may only be operated if that engine has been certified to meet either applicable California off-road or federal nonroad emission standards and test procedures for its fuel type and power category; 5 (2) a full authorization for its requirement that a driver may not operate a dieselfueled APS engine on a vehicle with a primary engine certified to the 2007 and subsequent model year standards unless the APS is certified to meet the applicable California or federal standard and meets one of three additional requirements; 6 and (3) a determination that its requirements pertaining to fuelfired heaters, batteries, fuel cells, and power inverter/chargers for on-shore 4 See California Air Resources Board (CARB), ‘‘Waiver and Authorization Action Support Document,’’ pp. 1–13, EPA–HQ–OAR–2010–0317– 0002 (hereinafter ‘‘CARB Support Document’’). 5 CARB believes this requirement is within-thescope of the previous authorization for new nonroad engine standards because that authorization already allows enforcement of California’s requirement that any new APS engine acquired since the 2000 model year is required to meet the California or federal nonroad engine emission standards. See 75 FR 8056 (February 23, 2010). 6 The additional requirements are one of the following: (a) Exhaust routed into the truck’s exhaust system and PM trap; (b) a level 3 verified PM control strategy; or (c) use of other procedures to demonstrate an equivalent level of emissions compliance. VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 power are not preempted by section 209. B. Clean Air Act New Motor Vehicle Waivers of Preemption Section 209(a) of the Clean Air Act preempts states and local governments from setting emission standards for new motor vehicles and engines; it provides: No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No state shall require certification, inspection or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. Through operation of section 209(b) of the Act, California is able to seek and receive a waiver of section 209(a)’s preemption. If certain criteria are met, section 209(b)(1) of the Act requires the Administrator, after notice and opportunity for public hearing, to waive application of the prohibitions of section 209(a). Section 209(b)(1) only allows a waiver to be granted for any State that had adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, if the State determines that its standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards (i.e., if such State makes a ‘‘protectiveness determination’’). Because California was the only state to have adopted standards prior to 1966, it is the only state that is qualified to seek and receive a waiver.7 The Administrator must grant a waiver unless she finds that: (A) California’s above-noted ‘‘protectiveness determination’’ is arbitrary and capricious; 8 (B) California does not need such State standards to meet compelling and extraordinary conditions; 9 or (C) California’s standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act.10 EPA has previously stated that consistency with section 202(a) requires that California’s standards must be technologically feasible within the lead time provided, giving due consideration of costs, and that California and 7 See S.Rep. No. 90–403 at 632 (1967). section 209(b)(1)(A). 9 CAA section 209(b)(1)(B). 10 CAA section 209(b)(1)(C). 8 CAA PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 applicable federal test procedures be consistent.11 The second sentence of section 209(a) of the Act prevents states from requiring, ‘‘certification, inspection or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment.’’ However, once EPA has granted California a waiver of section 209(a)’s preemption for emission standards and/ or accompanying enforcement procedures, California may then require other such conditions precedent.12 EPA can confirm that a California requirement is a condition precedent to sale, titling, or registration, if: (1) The requirements do not constitute new or different standards or accompanying enforcement procedures, and (2) the requirements do not affect the basis for the previous waiver decision. In contrast to section 209(a)’s preemption of state adoption of standards controlling emissions from new motor vehicles and motor vehicle engines, section 209(d) of the Act explicitly preserves states’ ability to regulate vehicles and engines in use. Section 209(d) provides that despite section 209(a)’s preemption, ‘‘Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered or licensed motor vehicles.’’ 13 C. Clean Air Act Nonroad Engine and Vehicle Authorizations Section 209(e)(1) of the Act permanently preempts any State, or political subdivision thereof, from adopting or attempting to enforce any standard or other requirement relating to the control of emissions for certain new nonroad engines or vehicles. Section 209(e)(2) of the Act requires the Administrator to grant California authorization to enforce its own 11 See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095, 1126 (D.C. Cir. 1979). 12 ‘‘Once California receives a waiver for standards for a certain class of motor vehicles, it need only meet the waiver criteria of section 209(b) for regulations pertaining to those vehicles when it adopts new or different standards or accompanying enforcement procedures. Otherwise, California may adopt any other condition precedent to the initial retail sale, titling, or registration of those vehicles without the necessity of receiving a further waiver of Federal preemption.’’ 43 FR 36680 (August 18, 1978). 13 See also Engine Mfrs. Ass’n v. EPA, 88 F.3d 1075, 1094 (D.C. Cir. 1996). E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES standards for new nonroad engines or vehicles, which are not listed under section 209(e)(1), subject to certain restrictions. On July 20, 1994, EPA promulgated a rule that sets forth, among other things, the criteria, as found in section 209(e)(2), which EPA must consider before granting any California authorization request for new nonroad engine or vehicle emission standards. On October 8, 2008, the regulations promulgated in that rule were moved to 40 CFR Part 1074, and modified slightly.14 As stated in the preamble to the section 209(e) rule, EPA has historically interpreted the section 209(e)(2)(iii) ‘‘consistency’’ inquiry to require, at minimum, that California standards and enforcement procedures be consistent with section 209(a), section 209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that subsection in the context of section 209(b) motor vehicle waivers).15 In order to be consistent with section 209(a), California’s nonroad standards and enforcement procedures must not apply to new motor vehicles or new motor vehicle engines. To be consistent with section 209(e)(1), California’s nonroad standards and enforcement procedures must not attempt to regulate engine categories that are permanently preempted from state regulation. To determine consistency with section 209(b)(1)(C), EPA typically reviews nonroad authorization requests under the same ‘‘consistency’’ criteria that are applied to motor vehicle waiver requests. Pursuant to section 209(b)(1)(C), the Administrator shall not grant California a motor vehicle waiver if she finds that California ‘‘standards and accompanying enforcement procedures are not consistent with 14 The applicable regulations, now in 40 CFR part 1074, subpart B, § 1074.105, provide: (a) The Administrator will grant the authorization if California determines that its standards will be, in the aggregate, at least as protective of public health and welfare as otherwise applicable federal standards. (b) The authorization will not be granted if the Administrator finds that any of the following are true: (1) California’s determination is arbitrary and capricious. (2) California does not need such standards to meet compelling and extraordinary conditions. (3) The California standards and accompanying enforcement procedures are not consistent with section 209 of the Act. (c) In considering any request from California to authorize the state to adopt or enforce standards or other requirements relating to the control of emissions from new nonroad spark-ignition engines smaller than 50 horsepower, the Administrator will give appropriate consideration to safety factors (including the potential increased risk of burn or fire) associated with compliance with the California standard. 15 See 59 FR 36969 (July 20, 1994). VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 section 202(a)’’ of the Act. Previous decisions granting waivers and authorizations have noted that state standards and enforcement procedures are inconsistent with section 202(a) if: (1) There is inadequate lead time to permit the development of the necessary technology giving appropriate consideration to the cost of compliance within that time, or (2) the federal and state testing procedures impose inconsistent certification requirements. D. Within-the-Scope Determinations If California amends regulations that were previously granted a waiver of preemption, EPA can confirm that the amended regulations are within the scope of the previously granted waiver. Such within-the-scope amendments are permissible without a full waiver review if three conditions are met. First, the amended regulations must not undermine California’s determination that its standards, in the aggregate, are as protective of public health and welfare as applicable federal standards. Second, the amended regulations must not affect consistency with section 202(a) of the Act. Third, the amended regulations must not raise any ‘‘new issues’’ affecting EPA’s prior waivers. E. Burden of Proof In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (DC Cir. 1979) (‘‘MEMA I’’), the U.S. Court of Appeals stated that the Administrator’s role in a section 209 proceeding is to: consider all evidence that passes the threshold test of materiality and * * * thereafter assess such material evidence against a standard of proof to determine whether the parties favoring a denial of the waiver have shown that the factual circumstances exist in which Congress intended a denial of the waiver.16 The court in MEMA I considered the standards of proof under section 209 for the two findings related to granting a waiver for an ‘‘accompanying enforcement procedure’’ (as opposed to the standards themselves): (1) Protectiveness in the aggregate and (2) consistency with section 202(a) findings. The court instructed that ‘‘the standard of proof must take account of the nature of the risk of error involved in any given decision, and it therefore varies with the finding involved. We need not decide how this standard operates in every waiver decision.’’ 17 The court upheld the Administrator’s position that, to deny a waiver, there must be ‘clear and compelling evidence’ to show that proposed procedures 9241 undermine the protectiveness of California’s standards.18 The court noted that this standard of proof also accords with the congressional intent to provide California with the broadest possible discretion in setting regulations it finds protective of the public health and welfare.19 With respect to the consistency finding, the court did not articulate a standard of proof applicable to all proceedings, but found that the opponents of the waiver were unable to meet their burden of proof even if the standard were a mere preponderance of the evidence. Although MEMA I did not explicitly consider the standards of proof under section 209 concerning a waiver request for ‘‘standards,’’ as compared to accompanying enforcement procedures, there is nothing in the opinion to suggest that the court’s analysis would not apply with equal force to such determinations. EPA’s past waiver decisions have consistently made clear that: ‘‘[E]ven in the two areas concededly reserved for Federal judgment by this legislation—the existence of ‘compelling and extraordinary’ conditions and whether the standards are technologically feasible—Congress intended that the standards of EPA review of the State decision to be a narrow one.’’ 20 Opponents of the waiver bear the burden of showing that the criteria for a denial of California’s waiver request have been met. As found in MEMA I, this obligation rests firmly with opponents of the waiver in a section 209 proceeding: [t]he language of the statute and its legislative history indicate that California’s regulations, and California’s determinations that they must comply with the statute, when presented to the Administrator are presumed to satisfy the waiver requirements and that the burden of proving otherwise is on whoever attacks them. California must present its regulations and findings at the hearing and thereafter the parties opposing the waiver request bear the burden of persuading the Administrator that the waiver request should be denied.21 The Administrator’s burden, on the other hand, is to make a reasonable evaluation of the information in the record in coming to the waiver decision. As the court in MEMA I stated: ‘‘here, too, if the Administrator ignores evidence demonstrating that the waiver should not be granted, or if he seeks to overcome that evidence with unsupported assumptions of his own, he runs the risk of having his waiver 18 Id. 19 Id. 16 MEMA I, 627 F.2d at 1122. 17 Id. PO 00000 Frm 00044 20 See, e.g., 40 FR 21102–103 (May 28, 1975). I, 627 F.2d at 1121. 21 MEMA Fmt 4703 Sfmt 4703 E:\FR\FM\16FEN1.SGM 16FEN1 9242 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES decision set aside as ‘arbitrary and capricious.’’’ 22 Therefore, the Administrator’s burden is to act ‘‘reasonably.’’ 23 F. EPA’s Administrative Process in Consideration of California’s Truck Idling Requirements Upon review of CARB’s request, EPA invited public comment on the entire request, including but not limited to the following issues. First, we asked whether we should consider CARB’s new engine requirements as non-preempted operational controls, or as conditions precedent. In the alternative, should we determine that CARB’s new engine requirements must be treated as standards relating to the control of emissions or accompanying enforcement procedures, we asked whether they be subject to and meet the criteria for EPA to confirm that they are within-the-scope of EPA’s waiver for new heavy-duty diesel engines for 2007 and subsequent model years. To the extent the new engine requirements should be treated as standards relating to the control of emissions or accompanying enforcement procedures and require a full waiver from EPA, we asked whether the requirements meet the full waiver criteria. Second, we asked whether CARB’s sleeper truck requirements properly should be considered an operational control and thus not preempted by section 209 of the Act. To the extent that CARB’s sleeper truck requirements should be treated as standards relating to the control of emissions from new motor vehicles or engines or accompanying enforcement procedures and require a full waiver from EPA, we sought comment on whether the requirements meet the criteria for a full waiver. Third, with respect to CARB’s alternative technology requirements, EPA sought comment on the following specific questions: (1) Does CARB’s requirement that an APS using an internal combustion engine be certified to meet either California off-road or federal nonroad emission standards and test procedures meet the requirements for finding that it is within-the-scope of the authorization EPA issued for new nonroad engine standards, thus not requiring a full authorization?; 24 (2) If not, does CARB’s requirement that an APS using an internal combustion engine be certified to meet either California off-road or federal nonroad 22 Id. at 1126. at 1126. 24 75 FR 8056 (February 23, 2010). 23 Id. VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 emission standards and test procedures meet the requirements for a full authorization?; (3) Does CARB’s requirement that a diesel-fueled APS engine be certified to the California or federal 2007 and subsequent model year standards and meet one of three other listed requirements 25 meet the criteria for a full authorization?; and (4) Are CARB’s requirements pertaining to fuelfired heaters, batteries, fuel cells, power inverter/chargers for on-shore power, and truck electrification preempted under section 209 of the Clean Air Act, and if so, do they meet the requirements for waiver under section 209(b) or authorization under section 209(e)? As called out by those specific questions, EPA sought threshold input on whether to treat various elements of CARB’s Truck Idling Requirements as conditions precedent, within the scope of previous waivers and authorizations, not preempted by section 209, or in need of a full waiver or authorization. We also sought substantive comment on whether the various elements of CARB’s Truck Idling Requirements meet the applicable criteria for confirmation as conditions precedent, within the scope, non-preemption, and full waiver or authorization. In response to EPA’s July 27, 2010 Federal Register notice, EPA received three written comments and no request for a public hearing. The written comments are from the American Trucking Associations (‘‘ATA’’),26 the Owner-Operator Independent Drivers Association, Inc. (‘‘OOIDA’’),27 and CARB.28 ATA’s comments specifically oppose California’s ‘‘alternative technology requirements,’’ which establish in-use performance standards for HDDV operators who use alternative 25 The additional requirements are one of the following: (a) Exhaust routed into the truck’s exhaust system and PM trap; (b) a level 3 verified PM control strategy; or (c) use of other procedures to demonstrate an equivalent level of emissions compliance. 26 American Truck Associations (‘‘ATA’’), ‘‘Docket ID No. EPA–HQ–OAR–2010–0317,’’ September 30, 2010, EPA–HQ–OAR–2010–0317– 0017, September 30, 2010 (hereinafter ‘‘ATA Comments’’). 27 Owner-Operator Independent Drivers Association Inc. (‘‘OOIDA’’), ‘‘Initial Comments of Owner-Operator Independent Drivers Association & Request for Additional Time to Provide Additional Comments,’’ October 1, 2010 (hereinafter ‘‘OOIDA Comments’’). 28 CARB, Additional Information to Support California’s Request for Waiver and Authorization Actions for California’s 2008 Truck Idling Requirements, and Response to Comments Submitted by Parties Opposing California’s Waiver and Authorization Request; Docket ID No. EPA– HQ–2010–0317,’’ EPA–HQ–OAR–2010–0317–1109, February 23, 2010 (hereinafter ‘‘CARB Supplemental Comments’’). PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 technologies (e.g., auxiliary power units) to supply power for truck cab or sleeper berth climate control and/or other on-board accessories that otherwise would have been generated by the continuous idling of the truck’s main engine. ATA comments that those requirements are not consistent with sections 202(a) and 209(e) of the Clean Air Act. OOIDA’s comments address issues it believes have been overlooked by EPA, including ‘‘CARB’s delay in requesting EPA review of Truck Idling Requirements without waiting for an EPA determination; CARB’s premature implementation and enforcement of those Requirements without waiting for an EPA determination; and CARB’s failure to consider the potential adverse impact of these requirements on the health and welfare of the affected truck drivers.’’ OOIDA also suggested that the Truck Idling Requirements may be preempted by federal law other than the Clean Air Act. OOIDA also requested an additional forty-five days—until November 15, 2010—to fully evaluate a recent decision by the United States Court of Appeals for the Ninth Circuit, Association of American Railroads et. al. v. South Coast Air Quality Management District, et. al., case number 07–55804.29 EPA did not formally extend the written comment period pursuant to this request, but did communicate to OOIDA that it would consider any written comments received before the Agency reached its final decision. OOIDA did not submit any further comments prior to EPA’s final decision, published here today. CARB submitted additional information in the form of supplemental comments to update its request in light of EPA’s authorization of California’s new nonroad compression-ignition regulations, and information regarding technological feasibility. CARB also responded to EPA’s request for comments, and the comments EPA received from ATA and OOIDA. CARB’s supplemental comments assert that ATA and OOIDA have failed to meet their burden of proof for a denial. CARB further requests that EPA grant California its requested waiver and authorizations to adopt and enforce its Truck Idling Requirements. II. Discussion California’s Truck Idling Requirements feature four general sets of requirements: Those applicable to 29 Association of American Railroads et. al. v. South Coast Air Quality Management District, et. al., case number 07–55804 (9th Cir. 2010), available at https://www.ca9.uscourts.gov/datastore/opinions/ 2010/09/15/07–55804.pdf. E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES new engines, those applicable to sleeper trucks, alternative technology requirements, and labeling requirements. A. California’s New Engine Requirements The new engine requirements imposed by California’s Truck Idling Requirements establish two compliance options for new California certified 2008 and subsequent model year heavy-duty diesel engines installed in trucks with a gross vehicle weight rating greater than 14,000 pounds. The first compliance option requires engine manufacturers to install a system that automatically shuts down the engine after five minutes of continuous idle operation. The second compliance option is an optional NOX idling emission standard of 30 grams per hour. CARB presents, first, that the new engine requirements are akin to operational controls on in-use vehicles and, accordingly, they are not preempted by Clean Air Act section 209(b). Alternatively, CARB argues that the new engine requirements are ‘‘other conditions precedent’’ to initial sale, titling, or registration that fall within the scope of the waiver of preemption EPA issued for California’s 2007 and subsequent model year heavy-duty diesel engine standards. Last, CARB argues that should EPA determine that the new engine requirements constitute standards relating to the control of emissions from new motor vehicle engines, such requirements fall within the scope of previous waivers of preemption. Thus, EPA must first determine what type of control the California new engine requirements impose before proceeding with an analysis of whether California meets the necessary Clean Air Act requirements under section 209. To address these issues, EPA asked the first set of questions in the July 27, 2010 Federal Register notice. We asked whether we should consider CARB’s new engine requirements as nonpreempted operational controls, or as conditions precedent. In the alternative, we asked if we determine that CARB’s new engine requirements must be treated as standards relating to the control of emissions or accompanying enforcement procedures, whether they be subject to and meet the criteria for EPA to confirm that they are within-thescope of EPA’s waiver for new heavyduty diesel engines for 2007 and subsequent model years. To the extent the new engine requirements should be treated as standards relating to the control of emissions or accompanying enforcement procedures and require a VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 full waiver from EPA, we asked whether the requirements meet the full waiver criteria. 1. Application of Section 209(b) Waiver Criteria EPA received no comments in response to the issues EPA raised for comment with respect to California’s new engine requirements. Despite CARB’s contentions, EPA has determined that California’s new engine requirements are standards relating to the control of emissions that require a full waiver of preemption from EPA. CARB believes that the United States Supreme Court’s interpretation of ‘‘standard relating to the control of emissions from new motor vehicles or new motor vehicle engines’’ in Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246 (2004) supports its position that the California new engine requirements are not standards relating to the control of emissions. To the contrary, EPA believes that the Supreme Court’s interpretation supports the conclusion that California’s new engine requirements should be considered as standards relating to the control of emissions. The primary compliance option of the new engine requirements requires new 2008 and later model year heavy-duty diesel engines to be equipped with idling shutdown systems. CARB presents that the primary compliance option does not establish a numerical emission standard, and does not require additional emission control devices or design features related to the control of emissions. While it is clear that requiring a shutdown system does not establish a numerical emission standard, it is also clear that requiring manufacturers to design their engines with a shutdown system to control truck idling emissions does impose a requirement upon manufacturers, for the purpose of limiting emissions. Even though this requirement imposes itself as a design requirement and not as an emissions performance standard, it is nevertheless a requirement related to emission reduction. Furthermore, the Supreme Court in EMA v. South Coast explicitly contemplated that a ‘‘design feature related to the control of emissions’’ would be considered a standard relating to the control of emissions. Additionally, California’s optional NOX idling standard, as an alternative compliance option, makes clear what the force and effect of the new engine requirements is—to limit emissions from idling trucks by imposing a requirement on new engines. Thus, EPA has determined that PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 9243 California’s new engine requirements are standards relating to the control of emissions; and therefore, EPA has evaluated the new engine requirements by application of the full waiver criteria. CARB alternatively requested that EPA evaluate California’s new engine requirements by application of EPA’s within-the-scope criteria. However, the new engine requirements impose an additional design requirement upon engine manufacturers, which is a ‘‘new issue’’ and cautions against application of the within-the-scope criteria. CARB believes its requirement that manufacturers include an engine shutdown system does not present a ‘‘new issue’’ because it ‘‘will only require manufacturers to perform minor reprogramming of the software incorporated in existing engine or vehicle computers, and will not require any modifications to hardware.’’ 30 In contrast, EPA believes that manufacturers existing designs do not factor into our analysis here.31 EPA views the additional design requirement imposed upon manufacturers as a new regulatory issue, which was not considered in our previous waiver for California’s 2007 and subsequent model year heavy-duty diesel standards. Therefore, as stated above, we have applied the full waiver criteria to California’s request. 2. California’s Protectiveness Determination Section 209(b)(1)(A) of the Clean Air Act requires EPA to deny a waiver if the Administrator finds that California was arbitrary and capricious in its determination that its State standards will be, in the aggregate, at least as protective of public health and welfare as applicable federal standards. When evaluating California’s protectiveness determination, EPA compares the stringency of the California and federal standards at issue in a given waiver request. That comparison is undertaken within the broader context of the previously waived California program, which relies upon protectiveness determinations that EPA previously found were not arbitrary and capricious. When California adopted its Truck Idling Requirements, the CARB Board made its protectiveness finding in its Resolution 05–55.32 That protectiveness 30 CARB Support Document at 31. current designs and system capabilities are more appropriately evaluated under the CAA section 209(b)(1)(C) technological feasibility criterion. 32 CARB Resolution 05–55, EPA–HQ–OAR–2010– 0008, ‘‘Be It Further Resolved that the Board hereby determines that the regulations adopted herein will 31 Manufacturers E:\FR\FM\16FEN1.SGM Continued 16FEN1 9244 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices determination was made against the background of California’s previous protectiveness determination for its 2007 and subsequent model year heavy duty diesel standards, which EPA previously found was not arbitrary and capricious.33 Compared to the federal standards, California’s 2007 and subsequent model year heavy-duty diesel standards are numerically equivalent. Furthermore, CARB asserts that it’s Truck Idling Requirements ‘‘in no way reduce the stringency of either the underlying exhaust emission standards or the associated test procedures.’’ 34 Notably, the new engine requirements California is imposing within its Truck Idling Requirements are an additional requirement beyond that which is required by EPA’s federal standards. Thus, CARB presents that EPA has ‘‘no basis for finding that CARB’’ made its protectiveness determination arbitrarily or capriciously.35 No commenter expressed an opinion or presented any evidence suggesting that CARB was arbitrary and capricious in making its above-noted protectiveness findings. Therefore, based on the record, EPA cannot find that California was arbitrary and capricious in its findings that California’s new engine requirements are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. srobinson on DSK4SPTVN1PROD with NOTICES 3. California’s Need for State Standards To Meet Compelling and Extraordinary Conditions Under section 209(b)(1)(B) of the Act, EPA cannot grant a waiver if California ‘‘does not need such State standards to meet compelling and extraordinary conditions.’’ To evaluate this criterion, EPA considers whether California needs a separate motor vehicle emissions program to meet compelling and extraordinary conditions. Over the past forty years, CARB has repeatedly demonstrated the need for its motor vehicle emissions program to address compelling and extraordinary conditions in California.36 In its Resolution 05–55, CARB affirmed its longstanding position that California not cause California motor vehicle emission standards, in the aggregate, to be less protective of the public health and welfare than applicable federal standards.’’ 33 70 FR 50322 (August 26, 2005). 34 CARB Support Document at 27. 35 CARB Supplemental Comments at 6. 36 See, e.g., Approval and Promulgation of State Implementation Plans; California—South Coast, 64 FR 1770, 1771 (January 12, 1999). See also 69 FR 23858, 23881–90 (April 30, 2004) (designating 15 areas in California as nonattainment for the federal 8-hour ozone national ambient air quality standard). VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 continues to need its own motor vehicle and engine program to meet its serious air pollution problems. Likewise, EPA has consistently recognized that California continues to have the same ‘‘geographical and climatic conditions that, when combined with the large numbers and high concentrations of automobiles, create serious pollution problems.’’ 37 Furthermore, no commenter has presented any argument or evidence to suggest that California no longer needs a separate motor vehicle emissions program to address compelling and extraordinary conditions in California. Therefore, EPA has determined that we cannot deny California a waiver for its new engine requirements under section 209(b)(1)(B). 4. Consistency With Section 202(a) of the Clean Air Act Under section 209(b)(1)(C) of the Act, EPA must deny a California waiver request if the Agency finds that California standards and accompanying enforcement procedures are not consistent with section 202(a) of the Act. The scope of EPA’s review under this criterion is narrow. EPA has stated on many occasions that the determination is limited to whether those opposed to the waiver have met their burden of establishing that California’s standards are technologically infeasible, or that California’s test procedures impose requirements inconsistent with federal test procedures. Previous waivers of federal preemption have stated that California’s standards are not consistent with section 202(a) if there is inadequate lead time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that time. California’s accompanying enforcement procedures would be inconsistent with section 202(a) if the federal and California test procedures conflict, i.e., if manufacturers would be unable to meet both the California and federal test requirements with the same test vehicle. California presents that its new engine requirements are currently technologically feasible, with appropriate consideration given to cost, and do not impose inconsistent certification requirements.38 First, CARB presents information regarding the current technological feasibility of the engine shutdown compliance option: ‘‘The technology needed to 37 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693 (June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042 (September 8, 2008). 38 CARB Support Document at 27. PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 comply with the new engine shutdown system option presently exists, and in fact has been widely available as a standard feature in most commercially available on-road heavy-duty engines.’’ 39 CARB notes that a number of manufacturers already include such technology in their engines, but most fleet owners and operators do not activate it. For manufacturers who did not include such technology in their engines, CARB staff notes that only minor modifications would be needed. The costs associated with modifications, as estimated by CARB staff, are minimal—‘‘$100 per engine to cover additional administrative costs and minimal reprogramming costs.’’ 40 Next, CARB presents information regarding the technological feasibility of the optional NOX idling standard.41 Significantly, CARB notes that many manufacturers have either already certified to the optional NOX standard or intend to in future model years. These manufacturers have implemented strategies to meet the optional NOX idling standard without adding any additional hardware or modifications to their emission control systems or components. Manufacturers have certified to the standard merely by making modifications to their existing software (e.g., by modifying exhaust gas recirculation rates and/or the pulse of the fuel injectors during idle operating modes). Last, CARB presents information regarding the effect of California’s new engine requirements on manufacturers’ existing certification requirements. CARB asserts that: ‘‘Neither the new engine shutdown system nor the optional NOX idling emission standard option present any issues of test procedure inconsistency because there are no analogous federal requirements.’’ 42 CARB also confirms that manufacturers may conduct one set of tests to determine compliance with both California and federal requirements.43 No commenter expressed any disagreement with these statements from CARB, and no commenter presented any evidence opposing CARB’s assertions regarding technological feasibility, lead-time, and cost of compliance. Therefore, EPA is unable to find that California’s new engine requirements are not technologically feasible within the 39 CARB Support Document at 28–29. at 28; see also CARB, ‘‘Staff Report: Initial Statement of Reasons,’’ EPA–HQ–OAR–2010–0317– 0005, (hereinafter ‘‘ISOR’’), at 37. 41 CARB Support Document at 30. 42 CARB Support Document at 31. 43 Id. 40 Id. E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices available lead-time, giving appropriate consideration to the cost of compliance. 5. Full Waiver of Preemption Determination for California’s New Engine Requirements After a review of the information submitted by CARB and other parties to this proceeding, EPA finds that those opposing California’s request have not met the burden of demonstrating that a waiver for California’s new engine requirements should be denied based on any of the three statutory criteria of section 209(b)(1). For this reason, EPA finds that California’s new engine requirements should receive a full waiver of preemption. srobinson on DSK4SPTVN1PROD with NOTICES B. California’s Sleeper Truck Requirements California’s Truck Idling Requirements impose a new requirement on the operators of sleeper berth equipped heavy-duty diesel vehicles. Sleeper truck operators will now be required to manually shut off engines after five minutes of continuous idling. To address CARB’s sleeper truck requirements, EPA asked the second set of questions in the July 27, 2010 Federal Register notice. We asked whether CARB’s sleeper truck requirements properly should be considered an operational control and thus not preempted by section 209 of the Act. To the extent that CARB’s sleeper truck requirements should be treated as standards relating to the control of emissions from new motor vehicles or engines or accompanying enforcement procedures and require a full waiver from EPA, we sought comment on whether the requirements meet the criteria for a full waiver. 1. California’s Sleeper Truck Requirements Do Not Require a Waiver From EPA California asserts that the sleeper truck requirements are an in-use operational control of motor vehicles and do not require a waiver of preemption. Since the sleeper truck requirements only apply to in-use motor vehicles, and Clean Air Act section 209(a) preemption only applies to new motor vehicles and engines, CARB asserts that section 209(a) preemption does not apply to these requirements. Additionally, CARB points towards section 209(d) of the Act, which states: ‘‘Nothing in this part shall preclude or deny to any State or political subdivision thereof the right otherwise to control, regulate, or restrict the use, operation, or movement of registered vehicles.’’ Read together, sections 209(a) and 209(d) make clear that operational VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 controls, such as idling limits directed towards the operator of the vehicle, are not preempted and do not need a waiver of preemption pursuant to section 209(b). EPA agrees with this analysis and does not believe that in-use controls, such as idling limits, are preempted by section 209(a). Therefore, California’s sleeper truck requirements do not require a waiver of preemption under section 209(b) of the Act. 2. Other Issues OOIDA comments that the sleeper truck idling requirements will have an adverse effect on the health and welfare of drivers. This comment is inapplicable to EPA’s analysis here, because as stated above, EPA has found that the sleeper truck requirements are not preempted under section 209(a). Therefore, EPA has no authority to evaluate California’s sleeper truck requirements. To the extent this comment suggests that California’s protectiveness determination for its alternative technology requirements was arbitrary and capricious, we have addressed that issue below. C. California’s Alternative Technology Requirements CARB anticipated that truck operators would likely utilize alternative technologies to power truck cabins, sleeper berths, and/or other on-board accessories that previously would have been powered by the truck’s main engine. Such alternative technologies include internal combustion engine powered alternative power sources (‘‘APSs’’) and fuel-fired heaters. To account for the increased particulate matter (PM) emissions that would be generated by inclusion of these alternative technologies on heavy-duty diesel vehicles, CARB developed alternative technology requirements. CARB’s general alternative technology requirement is that internal combustion engines used in APSs must be certified to the California or federal nonroad emission standards and test procedures applicable to the fuel type and horsepower category of the engines. CARB also imposes specific requirements for diesel-fueled APSs, dependent upon model year. For 2007 and later model year heavy-duty diesel trucks, a diesel-fueled APS must comply with California or federal nonroad emission standards and one of three additional requirements: (1) Route their exhaust into the truck’s exhaust system so that the APS’s PM emissions are controlled by the truck’s PM trap; or (2) be equipped with a level 3 verified PM control strategy (i.e., achieve an 85 percent PM reduction efficiency); or (3) PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 9245 obtain advance CARB approval to use other procedures to demonstrate an equivalent level of emission compliance. For 2006 and older model year trucks, diesel-fueled APS need only comply with the California or federal nonroad emission standards and test procedures applicable to the horsepower category of the engines. With respect to CARB’s alternative technology requirements, in the July 27, 2010 Federal Register notice, EPA sought comment on the following specific questions: (1) Does CARB’s requirement that an APS using an internal combustion engine be certified to meet either California off-road or federal nonroad emission standards and test procedures meet the requirements for finding that it is within-the-scope of the authorization EPA issued for new nonroad engine standards, thus not requiring a full authorization?; 44 (2) If not, does CARB’s requirement that an APS using an internal combustion engine be certified to meet either California off-road or federal nonroad emission standards and test procedures meet the requirements for a full authorization?; and (3) Does CARB’s requirement that a diesel-fueled APS engine be certified to the California or federal 2007 and subsequent model year standards and meet one of three other listed requirements 45 meet the criteria for a full authorization? 1. Application of Full Authorization Analysis With respect to the threshold question EPA asked as to which waiver analysis to apply to CARB’s APS requirements, EPA received no comments. CARB asserts that because its APS requirements are linked to preexisting federal or California standards and certification requirements, the new APS requirements are within the scope of the prior authorizations for these engines. However, EPA does not believe that a within-the-scope analysis is appropriate in this circumstance. In the past, EPA has reviewed amendments to previously waived or authorized California standards for a determination of whether those amendments were within the scope of the previously waived or authorized standards. Here though, the APS requirements as imposed by California’s Truck Idling Requirements are not amendments, but new regulations. Even though the APS 44 75 FR 8056 (February 23, 2010). additional requirements are one of the following: (a) Exhaust routed into the truck’s exhaust system and PM trap; (b) a level 3 verified PM control strategy; or (c) use of other procedures to demonstrate an equivalent level of emissions compliance. 45 The E:\FR\FM\16FEN1.SGM 16FEN1 9246 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices requirements link to and rely upon previously authorized standards, they are newly applicable to all APS engines used in on-highway heavy-duty diesel vehicles, regardless of the model year of the engine. Because this is an additional requirement beyond that contemplated in previous nonroad and on-highway authorizations, EPA cannot apply its within-the-scope construct. Thus, we have reviewed all of California’s APS requirements by application of our full authorization analysis. srobinson on DSK4SPTVN1PROD with NOTICES 2. California’s Protectiveness Determination Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an authorization if the agency finds that CARB was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. CARB’s Board made a protectiveness determination in Resolution 05–55, finding that California’s Truck Idling Requirements will not cause the California emission standards, in the aggregate, to be less protective of public health and welfare than applicable federal standards.46 Furthermore, CARB asserts that ‘‘there is no question’’ its APS requirements are at least as protective of public health and welfare as applicable federal standards. To make this assertion, CARB highlights that EPA is authorized to regulate new nonroad engines, and only California may adopt emission standards and other emission-related requirements for in-use nonroad engines.47 Accordingly, CARB points out that EPA has not adopted any emission standards or other requirements applicable to in-use APS engines. EPA received one comment challenging California’s protectiveness determination with respect to the APS requirements. OOIDA comments that ‘‘in determining whether CARB’s sleeper truck and alternative power source requirements should be approved, under any analysis, EPA should take care to fully consider and balance against the benefits to be gained by reducing emissions from idling sleeper trucks, the very real adverse impact such a requirement would have 46 CARB Resolution 05–55, EPA–HQ–OAR–2010– 0008, ‘‘Be It Further Resolved that the Board hereby determines, pursuant to section 209(e)(2) of the federal Clean Air Act, that the emission standards and other requirements related to the control of emissions adopted as part of this Airborne Toxic Control Measure are, in the aggregate, at least as protective of public health and welfare as applicable federal standards * * * ’’ 47 CARB Support Document at 34; see EMA v. EPA, 88 F.3d 1075 at 1089–1090. VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 on the health and welfare of the operators of those trucks and negative effects on highway safety from truck operators not being properly rested.’’ 48 CARB counters that ‘‘OOIDA’s argument fails to present ‘clear and compelling’ evidence that California’s protectiveness determinations are arbitrary and capricious; instead, it is only based on OOIDA’s assumptions regarding the financial status and individual business decisions of numerous affected entities.’’ 49 EPA’s review of California’s protectiveness determination is limited under section 209(e)(2)(i). The Agency’s review is highly deferential to California; the Clean Air Act does not leave room for EPA to second-guess the wisdom of California’s policy. Contrary to OOIDA’s request, it is not EPA’s role in this context to consider and balance the emissions benefits against the potential negative impacts on operator health and welfare and highway safety. Instead, EPA is charged with determining whether California made its protectiveness determination arbitrarily or capriciously. Furthermore, for a number of reasons, OOIDA has not met its burden to show that California should be denied authorization because it has been arbitrary and capricious in making its protectiveness determination. First, OOIDA’s comments are primarily directed at California’s sleeper truck requirements, which as discussed above are not even subject to the section 209(a) waiver and section 209(e) authorization provisions. Second, the issues OOIDA raises with respect to California’s protectiveness determination are not the type of issues that EPA traditionally considers as part of its evaluation of California’s protectiveness determination. When evaluating California’s protectiveness determination, EPA traditionally compares the stringency of the California and federal standards at issue in a given waiver or authorization request. That comparison is undertaken within the broader context of the previously waived California program, which relies upon protectiveness determinations that EPA previously found were not arbitrary and capricious. EPA refrains from conducting a more detailed examination of the secondary or tertiary effects California standards may have on health and the environment. Such an undertaking would seemingly go beyond the review that Congress intended.50 Considering OOIDA’s comments within the context of EPA’s traditional protectiveness 48 OOIDA Comments at 4. Supplemental Comments at 10. 50 MEMA I, 627 F.2d at 1121. 49 CARB PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 evaluation provides no additional opportunity to question California’s protectiveness determination because OOIDA provides no indication that California’s standards are less stringent than comparable federal standards. Third, even if we were to take into account OOIDA’s concerns, OOIDA’s secondary ‘‘protectiveness’’ concerns to do not present sufficient evidence to meet its burden of proof. OOIDA does not present any factual evidence or analysis of the specific health and welfare effects they expect to be caused by California’s idling restrictions. Such evidence and analysis would be necessary to show that California’s standards are less protective of health and welfare. Additionally, OOIDA does not dispute that California has presumed and allowed several avenues for drivers to use climate control and accessories during idling, particularly through the use of alternative power units. California also notes, in response to OOIDA, that it has provisions to allow extended idling during periods of extreme weather. Also, while OOIDA suggests that California’s APS requirements are too expensive (which is more an issue of technological feasibility, discussed below, not protectiveness), there is no question that California allows the use of power to deal with climate control in sleeper car cabins. In sum, based on full consideration and evaluation of the totality of information CARB has supplied and the assertions OOIDA has presented, EPA cannot find that California’s protectiveness determination was arbitrary and capricious. Therefore, based on the record before us, EPA finds that opponents of the authorization have not shown that California was arbitrary and capricious in its determination that its standards are, in the aggregate, at least as protective of public health and welfare as applicable federal standards. B. Need for California Standards To Meet Compelling and Extraordinary Conditions Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an authorization if the agency finds that California ‘‘does not need such California standards to meet compelling and extraordinary conditions * * *.’’ This criterion restricts EPA’s inquiry to whether California needs its own mobile source pollution program to meet compelling and extraordinary conditions, and not whether any given standards are necessary to meet such E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices conditions.51 As discussed above, for over forty years CARB has repeatedly demonstrated the need for its motor vehicle emissions program to address compelling and extraordinary conditions in California. In its Resolution 05–55, CARB affirmed its longstanding position that California continues to need its own motor vehicle and engine program to meet its serious air pollution problems. Likewise, EPA has consistently recognized that California continues to have the same ‘‘geographical and climatic conditions that, when combined with the large numbers and high concentrations of automobiles, create serious pollution problems.’’ Furthermore, no commenter has presented any argument or evidence to suggest that California no longer needs a separate motor vehicle emissions program to address compelling and extraordinary conditions in California. Therefore, EPA has determined that we cannot deny California a waiver for its new engine requirements under section 209(e)(2)(ii). srobinson on DSK4SPTVN1PROD with NOTICES C. Consistency With Section 209 of the Clean Air Act Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant an authorization if California’s standards and enforcement procedures are not consistent with section 209. As described above, EPA has historically evaluated this criterion for consistency with sections 209(a), 209(e)(1), and 209(b)(1)(C). 1. Consistency With Section 209(a) To be consistent with section 209(a) of the Clean Air Act, California’s APS requirements must not apply to new motor vehicles or engines. California’s APS requirements apply to nonroad engines, not new on-highway motor vehicles or engines. CARB presents that although the APS are used on onhighway heavy-duty diesel vehicles and engines, they are auxiliary engines and are not used to propel motor vehicles or engines. CARB further states that because APS are regulated as nonroad engines, they fall within the regulatory definition of nonroad engine, and are, thus, consistent with section 209(a). No commenter presented otherwise; therefore, EPA cannot deny California’s request on the basis that California’s APS requirements are not consistent with section 209(a). 2. Consistency With Section 209(e)(1) To be consistent with section 209(e)(1) of the Clean Air Act, California’s APS requirements must not affect new farming or construction vehicles or engines that are below 175 horsepower, or new locomotives or their engines. CARB presents that APS engines are not used in locomotives and are not primarily used in farm and construction equipment vehicles. No commenter presented otherwise; therefore, EPA cannot deny California’s request on the basis that California’s APS requirements are not consistent with section 209(e)(1). 3. Consistency With Section 209(b)(1)(C) The requirement that California’s standards be consistent with section 209(b)(1)(C) of the Clean Air Act effectively requires consistency with section 202(a) of the Act. California standards are inconsistent with section 202(a) of the Act if there is inadequate lead-time to permit the development of technology necessary to meet those requirements, giving appropriate consideration to the cost of compliance within that time. California’s accompanying enforcement procedures would also be inconsistent with section 202(a) if the federal and California test procedures were not consistent. The scope of EPA’s review of whether California’s action is consistent with section 202(a) is narrow. The determination is limited to whether those opposed to the authorization or waiver have met their burden of establishing that California’s standards are technologically infeasible, or that California’s test procedures impose requirements inconsistent with the federal test procedure.52 a. Technological Feasibility Congress has stated that the consistency requirement of section 202(a) relates to technological feasibility.53 Section 202(a)(2) states, in part, that any regulation promulgated under its authority ‘‘shall take effect after such period as the Administrator finds necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period.’’ Section 202(a) thus requires the Administrator to first determine whether adequate technology already exists; or if it does not, whether there is adequate time to develop and apply the technology before the standards go into effect. The latter scenario also requires the Administrator to decide whether the cost of developing and applying the technology within that 52 MEMA 51 See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889–18890 (May 3, 1984). VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 53 H.R. I, 627 F.2d at 1126. Rep. No. 95–294, 95th Cong., 1st Sess. 301 time is feasible. Previous EPA waivers are in accord with this position.54 For example, a previous EPA waiver decision considered California’s standards and enforcement procedures to be consistent with section 202(a) because adequate technology existed as well as adequate lead-time to implement that technology.55 Subsequently, Congress has stated that, generally, EPA’s construction of the waiver provision has been consistent with congressional intent.56 With respect to the general APS requirements, CARB presents that the technological feasibility is readily apparent. CARB believes this because the general APS requirement is that the APS complies with the California or federal nonroad emission standards and test procedures applicable for its fuel type and power category. Therefore, EPA has already determined the technological feasibility for these standards, either in its own federal rulemaking or by authorizing the underlying California standards in a previous authorization.57 No commenter challenges the technological feasibility of California’s general APS requirements. Thus, EPA cannot deny California’s request on the basis of technological feasibility. With respect to the specific APS requirements for diesel APSs, CARB presents that each option is technologically feasible in the specified lead-time. Broadly, CARB asserts that ‘‘numerous technologies currently exist that can be used to comply with these requirements, including routing the exhaust from an APS into the exhaust system of the main engine, battery electric APSs, thermal energy storage systems, and on-shore electrical power infrastructures at truck stops.’’ 58 CARB also presents information regarding the technological feasibility of each of its compliance options. For the first option (routing a diesel APS’ exhaust upstream of the main engine’s diesel particulate trap), CARB provided information establishing technological feasibility in its Initial Statement of Reasoning, which went unchallenged in its Final Statement of Reasoning.59 CARB also 54 See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182, 32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976). 55 41 FR 44209 (October 7, 1976). 56 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). 57 60 FR 37440 (July 20, 1995), 65 FR 69763 (November 20, 2000), 68 FR 65702 (November 21, 2003), 71 FR 75536, and 75 FR 8056 (February 23, 2010). 58 CARB Supplemental Comments at 4. 59 CARB, ‘‘Staff Report: Initial Statement of Reasons,’’ EPA–HQ–OAR–2010–0317–0005; CARB, (1977). PO 00000 Frm 00050 9247 Continued Fmt 4703 Sfmt 4703 E:\FR\FM\16FEN1.SGM 16FEN1 9248 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES represents that at least one manufacturer applied for certification of a fully integrated APS and truck exhaust system for the 2008 model year.60 For the second option (inclusion of a CARBverified, level 3 PM control), CARB presented in its initial May 9, 2008 support document that it had several verification applications, and that the technology was feasible.61 Since that time, CARB has conditionally verified three level 3 PM control strategies that can be applied to APSs.62 For the third option (an equivalent compliance strategy), CARB provides several currently available technologies that are acceptable alternatives to the first two compliance options, including battery powered APSs, thermal energy storage systems, truck stop electrification, and off-board power infrastructure.63 For each of the options for compliance with the specific requirements for diesel APSs, CARB asserts that it gave appropriate consideration to cost of compliance within the lead-time provided. In its comments, OOIDA expresses concerns related to the cost of APSs on truck drivers. OOIDA believes that faced with the added expense of an APS, truck drivers will decide not to invest in APSs and ‘‘instead subject themselves to unhealthy and unsafe cab temperatures and conditions when hauling cargo in [California].’’ 64 Section 202(a) consistency calls for a limited review of technological feasibility, including a cost analysis of the cost of new technology, if technology does not currently exist; section 202(a) does not allow EPA to conduct a more searching review of whether the costs are outweighed by the overall benefits of the California regulations. In this case, APS technologies are in existence and are being used in actual operation. In addition, CARB responds to OOIDA’s cost concerns in its supplemental comments.65 First, CARB points out that its Truck Idling Regulations allow truck drivers to override idling shutoff systems during extreme weather conditions. More specifically, CARB points towards its administrative record for support of its cost analysis. During the California rulemaking, CARB staff determined that ‘‘the capital costs of [APS] technology could be recouped by truck owners or operators in as few as ‘‘Final Statement of Reasons,’’ EPA–HQ–OAR– 2010–0317–0010 (hereinafter ‘‘FSOR’’). 60 CARB Support Document at 40. 61 CARB Support Document at 42. 62 CARB Supplemental Comments at 4. 63 CARB Support Document at 44. 64 OOIDA Comments at 3. 65 CARB Supplemental Comments at 10–11. VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 two and a half years, due to cost savings resulting from reduced fuel and truck maintenance costs.’’ 66 CARB also relies on its APS cost estimates and response to comments regarding compliance costs.67 CARB’s rulemaking record with regard to cost effectively rebuts OOIDA’s assertion that CARB ‘‘simply assumes that all drivers have the ability to invest thousands of dollars in antiidling equipment * * *.’’ (emphasis added). In any case, while OOIDA’s comments may be relevant to whether an operator would choose to add the APS, they are not relevant to whether APS technologies are infeasible. As discussed above, these technologies are being used in practice and are clearly feasible. EPA did not receive any other comments suggesting that CARB’s standards and test procedures are technologically infeasible. Consequently, based on the record, EPA cannot deny California’s authorization based on technological infeasibility. b. Consistency of Certification Procedures California’s standards and accompanying enforcement procedures would also be inconsistent with section 202(a) if the California test procedures were to impose certification requirements inconsistent with the federal certification requirements. Such inconsistency means that manufacturers would be unable to meet both the California and federal testing requirements using the same test vehicle or engine.68 CARB presents that none of the APS requirements pose any inconsistency as between California and federal test procedures. First, CARB asserts that its general APS requirements do not modify the test procedures specified for certifying a California or federal nonroad engine.69 Second, CARB asserts that none of its three options to meet its APS requirements specific to diesel APS raise any issue with regard to test procedure consistency. For option 1, CARB again asserts that it does not alter test procedures specified for certifying a California or federal nonroad engine.70 For options 2 and 3, CARB additionally points out no incompatibility issue can arise as between federal and California test procedures because EPA has no comparable federal standards or test procedures for CARB to conflict with.71 66 CARB Supplemental Comments at 11. see ISOR Section VII and FSOR at 49–54. 68 See, e.g., 43 FR 32182 (July 25, 1978). 69 CARB Support Document at 38. 70 CARB Support Document at 40. 71 CARB Support Document at 45. 67 Id.; PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 EPA received no comments suggesting that CARB’s APS requirements pose a test procedure consistency problem. Therefore, based on the record, EPA cannot find that CARB’s testing procedures are inconsistent with section 202(a). Consequently, EPA cannot deny CARB’s request based on this criterion. 4. Other Issues In its comments, ATA asserts that because California’s APS requirements (those specific to diesel APSs on 2007 and subsequent model year heavy-duty diesel vehicles) apply to new diesel engines, they circumvent the consistency criteria of the Clean Air Act. ATA does not reference any of the sections of the Act which EPA has historically evaluated (i.e., sections 209(a), 209(e)(1), and 209(b)(1)(C)); instead, ATA generally challenges California’s ability to regulate APSs as inconsistent with federal standards. However, California’s ability to regulate APSs as either new or in-use engines, and depart from federal standards—is clearly grounded in section 209 of the Clean Air Act. California may regulate new nonroad engines pursuant to section 209(e)(2)’s authorization provision; and section 209(e) impliedly allows California to regulate in-use nonroad engines. Additionally, as CARB points out, ATA’s reliance on Allway Taxi, Inc. v. City of New York, is misplaced.72 Allway Taxi concerned whether New York City could require emission controls for taxis in use. Those emission controls had not received a waiver of preemption, as New York City cannot receive one directly and at the time could not promulgate standards identical to California’s. The court ultimately found that New York City could promulgate those emission controls, although noting that controls that took effect ‘‘the moment after a new car is bought and registered * * * would be an obvious circumvention of the Clean Air Act.’’ However, California has the authority to request a waiver of preemption (or authorization, for nonroad engines) for its standards under the Clean Air Act, and EPA has the authority to grant such request under section 209. Allway Taxi is not relevant 72 CARB Supplemental Comments at 12. (‘‘Allway Taxi primarily addressed the issue of whether states and localities that are preempted by the Clean Air Act from regulating new motor vehicles could nevertheless regulate emissions from in-use motor vehicles. That issue is clearly distinguishable from California’s authority to adopt and to enforce standards for the nonroad engines in dieselpowered APSs. Unlike New York, California is expressly authorized by Congress to regulate both new and in-use nonroad engines (that are not conclusively preempted by section 209(e)(1) of the CAA) in diesel-powered APSs.’’) E:\FR\FM\16FEN1.SGM 16FEN1 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices srobinson on DSK4SPTVN1PROD with NOTICES to this separate authority. It is this separate authority that is the subject of this proceeding. Furthermore, EPA’s decision with respect to California’s Truck Idling Requirements is circumscribed by the waiver criteria set forth in sections 209(b) and 209(e) of the Act. ATA’s argument appears more directed at its policy goal of uniform idling regulations, but does not comport with the section 209 criteria, nor does it call into question any of EPA’s section 209 analysis. Congress has provided a mechanism for California to have standards that are more stringent than those in other states, and ATA’s argument seems to neglect this clear authority. ATA also contends that EPA cannot grant a new authorization for California’s APS requirements (again, those specific to diesel APSs on 2007 and subsequent model year heavy-duty diesel vehicles) because ‘‘CARB has not complied with the lead time and stability requirements of section 202(a)(3)(C)’’ of the Clean Air Act. This comment also does not comport with the section 209 criteria. California must take lead-time into account, and EPA must consider lead-time when evaluating California’s regulations pursuant to section 209(e)’s consistency requirements. However, the lead-time inquiry EPA undertakes relates to technological feasibility. Specifically, consistency with section 202(a) requires the Administrator to first determine whether adequate technology already exists; or if it does not, whether there is adequate time to develop and apply the technology before the standards go into effect.73 Congress has stated that, generally, this construction accords with congressional intent.74 With respect to California’s specific APS requirements for diesel APSs used on 2007 and later model year heavy-duty diesel vehicles, California demonstrated that all three compliance options are currently technologically feasible. No party—including ATA—presented otherwise. EPA then has no further inquiry into lead-time, because no additional requirement is imposed by the section 209 criteria. 5. Authorization Determination for California’s APS Requirements After a review of the information submitted by CARB and other parties to 73 EPA notes that even if the language in section 202(a)(1)(C) were relevant to its consistency analysis, that section by its own terms applies only to standards applicable to emissions from new heavy-duty on-highway motor vehicle engines, not the nonroad engines being regulated by California. 74 H.R. Rep. No. 95–294, 95th Cong., 1st Sess. 301 (1977). VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 this proceeding, EPA finds that those opposing California’s request have not met the burden of demonstrating that a waiver for California’s APS requirements should be denied based on any of the three statutory criteria of section 209(e)(2). For this reason, EPA finds that California’s APS requirements should be authorized. D. Fuel-Fired Heater Requirements California’s Truck Idling Requirements also impose emission requirements on fuel-fired heaters. Fuelfired heaters provide heat to truck cabs or sleeper berths and/or preheat engine blocks during cold weather. Fuel-fired heaters on 2007 and later model year trucks operating in California may now only operate fuel-fired heaters that comply with California’s second generation of low emission vehicle (LEV II) regulations. With respect to CARB’s fuel-fired heater requirements, in the July 27, 2010 Federal Register notice, EPA sought comment on the following question: Are CARB’s requirements pertaining to fuelfired heaters, batteries, fuel cells, power inverter/chargers for on-shore power, and truck electrification preempted under section 209 of the Clean Air Act, and if so, do they meet the requirements for waiver under section 209(b) or authorization under section 209(e)? CARB presents that its fuel-fired heater requirements are not preempted and, accordingly, do not require an authorization.75 CARB asserts that because fuel-fired heaters are neither nonroad engines nor vehicles, they are not subject to section 209(e) preemption. EPA received no comments suggesting that CARB’s fuel-fired heater requirements are subject to section 209(e) preemption. EPA confirms that fuel-fired heaters are not nonroad engines or vehicles, and are therefore not preempted under section 209(e) of the Clean Air Act. E. California’s Truck Idling Labeling Requirements Engine manufacturers, original equipment manufacturers (OEMs), and internal combustion APSs manufacturers, as applicable, are required to produce and affix permanent labels to the hood of the truck. These labels are intended to assist CARB enforcement staff in clearly and easily identifying diesel trucks that comply with the California Truck Idling Requirements. As stated above, EPA is today issuing a waiver of preemption for the new engine requirements and an authorization for the APS requirements. 75 CARB PO 00000 Support Document at 45. Frm 00052 Fmt 4703 Sfmt 4703 9249 California’s engine and optional NOX idling labeling requirements, which accompany the new engine requirements, are therefore included in the waiver of preemption for the new engine requirements. Similarly, California’s auxiliary power system labeling requirements, which accompany the APS requirements, are therefore included in the authorization for the APS requirements. F. Other Issues OOIDA’s comments present two other issues that generally challenge California’s Truck Idling Requirements. First, OOIDA asserts that CARB should be prohibited from enforcing its Truck Idling Requirements until EPA approves them. Second, OOIDA asserts that federal laws other than the Clean Air Act may preempt California’s Truck Idling Requirements. As EPA has stated on numerous occasions, sections 209(b) and 209(e) of the Clean Air Act limit our authority to deny California requests for waivers and authorizations to the three criteria listed therein. As a result, EPA has consistently refrained from denying California’s requests for waivers and authorizations based on any other criteria.76 In instances where the U.S. Court of Appeals has reviewed EPA decisions declining to deny waiver requests based on criteria not found in section 209(b), the Court has upheld and agreed with EPA’s determination.77 Neither of the issues OOIDA raises is among—or fits within the confines of— either explicitly or implicitly, the criteria listed under sections 209(b) and 209(e).78 Therefore, in considering California’s Truck Idling Requirements, EPA has not considered these issues. III. Decision The Administrator has delegated the authority to grant California section 209(b) waivers of preemption and section 209(e) authorizations to the Assistant Administrator for Air and Radiation. After evaluating CARB’s Truck Idling Requirements, CARB’s submissions, and the public comments from ATA and OOIDA, EPA is taking the following actions. First, EPA is granting a waiver of preemption to California for its new engine requirements. Second, EPA is granting 76 See, e.g., 74 FR 32744, 32783 (July 8, 2009). Motor and Equipment Manufacturers Ass’n v. Nichols, 142 F.3d 449, 462–63, 466–67 (DC Cir.1998), Motor and Equipment Manufacturers Ass’n v. EPA, 627 F.2d 1095, 1111, 1114–20 (DC Cir. 1979). 78 OOIDA may raise these issues in a direct challenge to California’s regulations in other forums, but these issues are not relevant to EPA’s limited review under section 209. 77 See E:\FR\FM\16FEN1.SGM 16FEN1 9250 Federal Register / Vol. 77, No. 32 / Thursday, February 16, 2012 / Notices an authorization to California for its auxiliary power system requirements. My decision will affect not only persons in California, but also manufacturers outside the State who must comply with California’s requirements in order to produce vehicles for sale in California. For this reason, I determine and find that this is a final action of national applicability for purposes of section 307(b)(1) of the Act. Pursuant to section 307(b)(1) of the Act, judicial review of this final action may be sought only in the United States Court of Appeals for the District of Columbia Circuit. Petitions for review must be filed by April 16, 2012. Judicial review of this final action may not be obtained in subsequent enforcement proceedings, pursuant to section 307(b)(2) of the Act. IV. Statutory and Executive Order Reviews As with past authorization and waiver decisions, this action is not a rule as defined by Executive Order 12866. Therefore, it is exempt from review by the Office of Management and Budget as required for rules and regulations by Executive Order 12866. In addition, this action is not a rule as defined in the Regulatory Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a supporting regulatory flexibility analysis addressing the impact of this action on small business entities. Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule for purposes of 5 U.S.C. 804(3). Dated: February 8, 2012. Gina McCarthy, Assistant Administrator, Office of Air and Radiation. [FR Doc. 2012–3690 Filed 2–15–12; 8:45 am] BILLING CODE 6560–50–P FEDERAL RESERVE SYSTEM srobinson on DSK4SPTVN1PROD with NOTICES Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding Company The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)). The notices are available for immediate inspection at the Federal VerDate Mar<15>2010 16:31 Feb 15, 2012 Jkt 226001 Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than March 1, 2012. A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101–2566: 1. Richard H. Thut, Orrville, to acquire up to 32.97% of the voting shares of FC Banc Corp, Bucyrus, Ohio, and thereby acquire Farmers Citizens Bank, Bucyrus, Ohio. A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001: 1. Summit Bancshares, Inc., to become a bank holding company by acquiring 100 percent of the voting shares of Summit Bank, both in Tulsa, Oklahoma. Board of Governors of the Federal Reserve System, February 13, 2012. Robert deV. Frierson, Deputy Secretary of the Board. DEPARTMENT OF HEALTH AND HUMAN SERVICES [FR Doc. 2012–3660 Filed 2–15–12; 8:45 am] BILLING CODE 6210–01–P Board of Governors of the Federal Reserve System, February 10, 2012. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. 2012–3583 Filed 2–15–12; 8:45 am] BILLING CODE 6210–01–P Designation of a Class of Employees for Addition to the Special Exposure Cohort National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS). ACTION: Notice. AGENCY: FEDERAL RESERVE SYSTEM Formations of, Acquisitions by, and Mergers of Bank Holding Companies The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than March 12, 2012. PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 HHS gives notice of a decision to designate a class of employees from the Savannah River Site in Aiken, South Carolina, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000. On February 2, 2012, the Secretary of HHS designated the following class of employees as an addition to the SEC: SUMMARY: All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Savannah River Site from January 1, 1953, through September 30, 1972, for a number of work days aggregating at least 250 work days, occurring either solely under this employment or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort. This designation will become effective on March 3, 2012, unless Congress provides otherwise prior to the effective date. After this effective date, HHS will publish a notice in the Federal Register reporting the addition of this class to the SEC or the result of any provision by Congress regarding the decision by HHS to add the class to the SEC. FOR FURTHER INFORMATION CONTACT: Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 1–877–222–7570. Information requests E:\FR\FM\16FEN1.SGM 16FEN1

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 77, Number 32 (Thursday, February 16, 2012)]
[Notices]
[Pages 9239-9250]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-3690]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9633-1]

California State Motor Vehicle and Nonroad Engine Pollution
Control Standards; Truck Idling Requirements; Notice of Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Decision.

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SUMMARY: EPA has granted the California Air Resources Board (CARB) its
request for a waiver of preemption and authorization to adopt and
enforce California's Truck Idling Requirements. CARB's Truck Idling
Requirements apply to new California-certified 2008 and subsequent
model year heavy-duty diesel engines in heavy-duty diesel vehicles with
a gross vehicle weight rating over 14,000 pounds, and to in-use diesel-
fueled commercial vehicles with gross vehicle weight ratings over
10,000 pounds that are equipped with sleeper berths.

DATES: Petitions for review must be filed by April 16, 2012.

ADDRESSES: EPA has established a docket for this action under Docket ID
EPA-HQ-OAR-2010-0317. All documents relied upon in making this
decision, including those submitted to EPA by CARB, and public
comments, are contained in the public docket. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the Air and Radiation Docket in
the EPA Headquarters Library, EPA West Building, Room 3334, located at
1301 Constitution Avenue NW., Washington, DC. The Public Reading Room
is open to the public on all federal government working days from 8:30
a.m. to 4:30 p.m.; generally, it is open Monday through Friday,
excluding holidays. The telephone number for the Reading Room is (202)
566-1744. The Air and Radiation Docket and Information Center's Web
site is https://www.epa.gov/oar/docket.html. The electronic mail (email)
address for the Air and Radiation Docket is: a-and-r-Docket@epa.gov,
the telephone number is (202) 566-1742, and the fax number is (202)
566-9744. An electronic version of the public docket is available
through the federal government's electronic public docket and comment
system. You may access EPA dockets at https://www.regulations.gov. After
opening the www.regulations.gov Web site, enter EPA-HQ-OAR-2010-0317 in
the ``Enter Keyword or ID'' fill-in box to view documents in the
record. Although a part of the official docket, the public docket does
not include Confidential Business Information (``CBI'') or other
information whose disclosure is restricted by statute.
EPA's Office of Transportation and Air Quality (``OTAQ'') maintains
a Web page that contains general information on its review of
California waiver requests. Included on that page are links to prior
waiver Federal Register notices, some of which are cited in today's
notice; the page can be accessed at https://www.epa.gov/otaq/cafr.htm.

FOR FURTHER INFORMATION CONTACT: Kristien G. Knapp, Attorney-Advisor,
Compliance and Innovative Strategies Division, Office of Transportation
and Air Quality, U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue (6405J), NW., Washington, DC 20460. Telephone:
(202) 343-9949. Fax: (202) 343-2800. Email: knapp.kristien@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. California's Truck Idling Requirements

By letter dated May 9, 2008, CARB informed EPA that it had adopted
its Truck Idling Requirements, and requested that EPA confirm that
certain provisions of the requirements are not preempted by sections
209(a) of the Clean Air Act (Act); certain provisions are conditions
precedent pursuant to section 209(a) of the Act; \1\ certain provisions
are within-the-scope of previous waivers and authorizations issued
pursuant to sections 209(b) and 209(e) of the Act, respectively; and at
least one provision requires and merits a full authorization pursuant
to section 209(e) of the Act.\2\ CARB's 2008 Truck Idling Requirements
became effective California state law on November 15, 2006, amending
title 13, California Code of Regulations (CCR) sections 1956.8, 2404,
2424, 2425, and 2485.\3\
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\1\ EPA can confirm that a California requirement is a condition
precedent to sale, titling, or registration, if: (1) the
requirements do not constitute new or different standards or
accompanying enforcement procedures, and (2) the requirements do not
affect the basis for the previous waiver decision.
\2\ California Air Resources Board (CARB) Letter to EPA
regarding, ``Requirements to Reduce Idling Emissions From New and
In-Use Trucks, Beginning in 2008; Request for Confirmation That
Certain Requirements are not Subject to Preemption Under Clean Air
Act Section 209(a) or Fall Within the Scope of Previously Granted
Waivers and Authorizations, and Request for New Authorization Under
Section 209(e)(2),'' EPA-HQ-OAR-2010-0317-0001.
\3\ See California Air Resources Board (CARB), ``Final
Regulation Order,'' EPA-HQ-OAR-2010-0317-0011.
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CARB's Truck Idling Requirements consist of three elements: (1)
``New engine requirements'' that require new California-certified 2008
and subsequent model year on-road diesel engines in vehicles with a
gross vehicle weight rating (GVWR) greater than 14,000 pounds (i.e.,
heavy-duty diesel vehicles or ``HDDV''s) be equipped with a system that
automatically shuts down the engine after five minutes of continuous
idling; (2) ``sleeper truck requirements'' that require the operator of
a sleeper truck to manually shut down the engine after five minutes of
continuous idling;

[[Page 9240]]

and (3) ``alternative technology requirements'' that establish in-use
performance standards for HDDV operators who use alternative
technologies to supply power for truck cab or sleeper berth climate
control and/or other on-board accessories that otherwise would have
been generated by the continuous idling of the truck's main engine.\4\
CARB requests, first, that EPA confirm that its new engine requirements
are not preempted by section 209(a) of the Act, or that they are other
conditions precedent required prior to the initial sale of new heavy-
duty diesel engines. Alternatively, CARB requests that if EPA concludes
that the new engine requirements are preempted by section 209(a) of the
Act, then EPA confirm that the requirements are within the scope of
EPA's previously issued waiver for 2007 and later model year heavy-duty
diesel engines. Second, CARB requests that EPA confirm that its sleeper
truck requirements are purely operational controls, which are not
preempted by section 209(a) of the Act. Third, CARB requests the
following determinations from EPA with respect to its alternative
technology requirements: (1) A within-the-scope confirmation for its
requirement that an alternative power supply (APS) may only be operated
if that engine has been certified to meet either applicable California
off-road or federal nonroad emission standards and test procedures for
its fuel type and power category; \5\ (2) a full authorization for its
requirement that a driver may not operate a diesel-fueled APS engine on
a vehicle with a primary engine certified to the 2007 and subsequent
model year standards unless the APS is certified to meet the applicable
California or federal standard and meets one of three additional
requirements; \6\ and (3) a determination that its requirements
pertaining to fuel-fired heaters, batteries, fuel cells, and power
inverter/chargers for on-shore power are not preempted by section 209.
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\4\ See California Air Resources Board (CARB), ``Waiver and
Authorization Action Support Document,'' pp. 1-13, EPA-HQ-OAR-2010-
0317-0002 (hereinafter ``CARB Support Document'').
\5\ CARB believes this requirement is within-the-scope of the
previous authorization for new nonroad engine standards because that
authorization already allows enforcement of California's requirement
that any new APS engine acquired since the 2000 model year is
required to meet the California or federal nonroad engine emission
standards. See 75 FR 8056 (February 23, 2010).
\6\ The additional requirements are one of the following: (a)
Exhaust routed into the truck's exhaust system and PM trap; (b) a
level 3 verified PM control strategy; or (c) use of other procedures
to demonstrate an equivalent level of emissions compliance.
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B. Clean Air Act New Motor Vehicle Waivers of Preemption

Section 209(a) of the Clean Air Act preempts states and local
governments from setting emission standards for new motor vehicles and
engines; it provides:

No State or any political subdivision thereof shall adopt or
attempt to enforce any standard relating to the control of emissions
from new motor vehicles or new motor vehicle engines subject to this
part. No state shall require certification, inspection or any other
approval relating to the control of emissions from any new motor
vehicle or new motor vehicle engine as condition precedent to the
initial retail sale, titling (if any), or registration of such motor
vehicle, motor vehicle engine, or equipment.
Through operation of section 209(b) of the Act, California is able to
seek and receive a waiver of section 209(a)'s preemption. If certain
criteria are met, section 209(b)(1) of the Act requires the
Administrator, after notice and opportunity for public hearing, to
waive application of the prohibitions of section 209(a). Section
209(b)(1) only allows a waiver to be granted for any State that had
adopted standards (other than crankcase emission standards) for the
control of emissions from new motor vehicles or new motor vehicle
engines prior to March 30, 1966, if the State determines that its
standards will be, in the aggregate, at least as protective of public
health and welfare as applicable federal standards (i.e., if such State
makes a ``protectiveness determination''). Because California was the
only state to have adopted standards prior to 1966, it is the only
state that is qualified to seek and receive a waiver.\7\ The
Administrator must grant a waiver unless she finds that: (A)
California's above-noted ``protectiveness determination'' is arbitrary
and capricious; \8\ (B) California does not need such State standards
to meet compelling and extraordinary conditions; \9\ or (C)
California's standards and accompanying enforcement procedures are not
consistent with section 202(a) of the Act.\10\ EPA has previously
stated that consistency with section 202(a) requires that California's
standards must be technologically feasible within the lead time
provided, giving due consideration of costs, and that California and
applicable federal test procedures be consistent.\11\
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\7\ See S.Rep. No. 90-403 at 632 (1967).
\8\ CAA section 209(b)(1)(A).
\9\ CAA section 209(b)(1)(B).
\10\ CAA section 209(b)(1)(C).
\11\ See, e.g., 74 FR 32767 (July 8, 2009); see also Motor and
Equipment Manufacturers Association v. EPA (MEMA I), 627 F.2d 1095,
1126 (D.C. Cir. 1979).
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The second sentence of section 209(a) of the Act prevents states
from requiring, ``certification, inspection or any other approval
relating to the control of emissions from any new motor vehicle or new
motor vehicle engine as condition precedent to the initial retail sale,
titling (if any), or registration of such motor vehicle, motor vehicle
engine, or equipment.'' However, once EPA has granted California a
waiver of section 209(a)'s preemption for emission standards and/or
accompanying enforcement procedures, California may then require other
such conditions precedent.\12\ EPA can confirm that a California
requirement is a condition precedent to sale, titling, or registration,
if: (1) The requirements do not constitute new or different standards
or accompanying enforcement procedures, and (2) the requirements do not
affect the basis for the previous waiver decision.
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\12\ ``Once California receives a waiver for standards for a
certain class of motor vehicles, it need only meet the waiver
criteria of section 209(b) for regulations pertaining to those
vehicles when it adopts new or different standards or accompanying
enforcement procedures. Otherwise, California may adopt any other
condition precedent to the initial retail sale, titling, or
registration of those vehicles without the necessity of receiving a
further waiver of Federal preemption.'' 43 FR 36680 (August 18,
1978).
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In contrast to section 209(a)'s preemption of state adoption of
standards controlling emissions from new motor vehicles and motor
vehicle engines, section 209(d) of the Act explicitly preserves states'
ability to regulate vehicles and engines in use. Section 209(d)
provides that despite section 209(a)'s preemption, ``Nothing in this
part shall preclude or deny to any State or political subdivision
thereof the right otherwise to control, regulate, or restrict the use,
operation, or movement of registered or licensed motor vehicles.'' \13\
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\13\ See also Engine Mfrs. Ass'n v. EPA, 88 F.3d 1075, 1094
(D.C. Cir. 1996).
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C. Clean Air Act Nonroad Engine and Vehicle Authorizations

Section 209(e)(1) of the Act permanently preempts any State, or
political subdivision thereof, from adopting or attempting to enforce
any standard or other requirement relating to the control of emissions
for certain new nonroad engines or vehicles. Section 209(e)(2) of the
Act requires the Administrator to grant California authorization to
enforce its own

[[Page 9241]]

standards for new nonroad engines or vehicles, which are not listed
under section 209(e)(1), subject to certain restrictions. On July 20,
1994, EPA promulgated a rule that sets forth, among other things, the
criteria, as found in section 209(e)(2), which EPA must consider before
granting any California authorization request for new nonroad engine or
vehicle emission standards. On October 8, 2008, the regulations
promulgated in that rule were moved to 40 CFR Part 1074, and modified
slightly.\14\ As stated in the preamble to the section 209(e) rule, EPA
has historically interpreted the section 209(e)(2)(iii) ``consistency''
inquiry to require, at minimum, that California standards and
enforcement procedures be consistent with section 209(a), section
209(e)(1), and section 209(b)(1)(C) (as EPA has interpreted that
subsection in the context of section 209(b) motor vehicle waivers).\15\
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\14\ The applicable regulations, now in 40 CFR part 1074,
subpart B, Sec. 1074.105, provide:
(a) The Administrator will grant the authorization if California
determines that its standards will be, in the aggregate, at least as
protective of public health and welfare as otherwise applicable
federal standards.
(b) The authorization will not be granted if the Administrator
finds that any of the following are true:
(1) California's determination is arbitrary and capricious.
(2) California does not need such standards to meet compelling
and extraordinary conditions.
(3) The California standards and accompanying enforcement
procedures are not consistent with section 209 of the Act.
(c) In considering any request from California to authorize the
state to adopt or enforce standards or other requirements relating
to the control of emissions from new nonroad spark-ignition engines
smaller than 50 horsepower, the Administrator will give appropriate
consideration to safety factors (including the potential increased
risk of burn or fire) associated with compliance with the California
standard.
\15\ See 59 FR 36969 (July 20, 1994).
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In order to be consistent with section 209(a), California's nonroad
standards and enforcement procedures must not apply to new motor
vehicles or new motor vehicle engines. To be consistent with section
209(e)(1), California's nonroad standards and enforcement procedures
must not attempt to regulate engine categories that are permanently
preempted from state regulation. To determine consistency with section
209(b)(1)(C), EPA typically reviews nonroad authorization requests
under the same ``consistency'' criteria that are applied to motor
vehicle waiver requests. Pursuant to section 209(b)(1)(C), the
Administrator shall not grant California a motor vehicle waiver if she
finds that California ``standards and accompanying enforcement
procedures are not consistent with section 202(a)'' of the Act.
Previous decisions granting waivers and authorizations have noted that
state standards and enforcement procedures are inconsistent with
section 202(a) if: (1) There is inadequate lead time to permit the
development of the necessary technology giving appropriate
consideration to the cost of compliance within that time, or (2) the
federal and state testing procedures impose inconsistent certification
requirements.

D. Within-the-Scope Determinations

If California amends regulations that were previously granted a
waiver of preemption, EPA can confirm that the amended regulations are
within the scope of the previously granted waiver. Such within-the-
scope amendments are permissible without a full waiver review if three
conditions are met. First, the amended regulations must not undermine
California's determination that its standards, in the aggregate, are as
protective of public health and welfare as applicable federal
standards. Second, the amended regulations must not affect consistency
with section 202(a) of the Act. Third, the amended regulations must not
raise any ``new issues'' affecting EPA's prior waivers.

E. Burden of Proof

In Motor and Equip. Mfrs Assoc. v. EPA, 627 F.2d 1095 (DC Cir.
1979) (``MEMA I''), the U.S. Court of Appeals stated that the
Administrator's role in a section 209 proceeding is to:

consider all evidence that passes the threshold test of materiality
and * * * thereafter assess such material evidence against a
standard of proof to determine whether the parties favoring a denial
of the waiver have shown that the factual circumstances exist in
which Congress intended a denial of the waiver.\16\
---------------------------------------------------------------------------

\16\ MEMA I, 627 F.2d at 1122.

The court in MEMA I considered the standards of proof under section 209
for the two findings related to granting a waiver for an ``accompanying
enforcement procedure'' (as opposed to the standards themselves): (1)
Protectiveness in the aggregate and (2) consistency with section 202(a)
findings. The court instructed that ``the standard of proof must take
account of the nature of the risk of error involved in any given
decision, and it therefore varies with the finding involved. We need
not decide how this standard operates in every waiver decision.'' \17\
---------------------------------------------------------------------------

\17\ Id.
---------------------------------------------------------------------------

The court upheld the Administrator's position that, to deny a
waiver, there must be `clear and compelling evidence' to show that
proposed procedures undermine the protectiveness of California's
standards.\18\ The court noted that this standard of proof also accords
with the congressional intent to provide California with the broadest
possible discretion in setting regulations it finds protective of the
public health and welfare.\19\
---------------------------------------------------------------------------

\18\ Id.
\19\ Id.
---------------------------------------------------------------------------

With respect to the consistency finding, the court did not
articulate a standard of proof applicable to all proceedings, but found
that the opponents of the waiver were unable to meet their burden of
proof even if the standard were a mere preponderance of the evidence.
Although MEMA I did not explicitly consider the standards of proof
under section 209 concerning a waiver request for ``standards,'' as
compared to accompanying enforcement procedures, there is nothing in
the opinion to suggest that the court's analysis would not apply with
equal force to such determinations. EPA's past waiver decisions have
consistently made clear that: ``[E]ven in the two areas concededly
reserved for Federal judgment by this legislation--the existence of
`compelling and extraordinary' conditions and whether the standards are
technologically feasible--Congress intended that the standards of EPA
review of the State decision to be a narrow one.'' \20\
---------------------------------------------------------------------------

\20\ See, e.g., 40 FR 21102-103 (May 28, 1975).
---------------------------------------------------------------------------

Opponents of the waiver bear the burden of showing that the
criteria for a denial of California's waiver request have been met. As
found in MEMA I, this obligation rests firmly with opponents of the
waiver in a section 209 proceeding:

[t]he language of the statute and its legislative history indicate
that California's regulations, and California's determinations that
they must comply with the statute, when presented to the
Administrator are presumed to satisfy the waiver requirements and
that the burden of proving otherwise is on whoever attacks them.
California must present its regulations and findings at the hearing
and thereafter the parties opposing the waiver request bear the
burden of persuading the Administrator that the waiver request
should be denied.\21\
---------------------------------------------------------------------------

\21\ MEMA I, 627 F.2d at 1121.

The Administrator's burden, on the other hand, is to make a reasonable
evaluation of the information in the record in coming to the waiver
decision. As the court in MEMA I stated: ``here, too, if the
Administrator ignores evidence demonstrating that the waiver should not
be granted, or if he seeks to overcome that evidence with unsupported
assumptions of his own, he runs the risk of having his waiver

[[Page 9242]]

decision set aside as `arbitrary and capricious.''' \22\ Therefore, the
Administrator's burden is to act ``reasonably.'' \23\
---------------------------------------------------------------------------

\22\ Id. at 1126.
\23\ Id. at 1126.
---------------------------------------------------------------------------

F. EPA's Administrative Process in Consideration of California's Truck
Idling Requirements

Upon review of CARB's request, EPA invited public comment on the
entire request, including but not limited to the following issues.
First, we asked whether we should consider CARB's new engine
requirements as non-preempted operational controls, or as conditions
precedent. In the alternative, should we determine that CARB's new
engine requirements must be treated as standards relating to the
control of emissions or accompanying enforcement procedures, we asked
whether they be subject to and meet the criteria for EPA to confirm
that they are within-the-scope of EPA's waiver for new heavy-duty
diesel engines for 2007 and subsequent model years. To the extent the
new engine requirements should be treated as standards relating to the
control of emissions or accompanying enforcement procedures and require
a full waiver from EPA, we asked whether the requirements meet the full
waiver criteria.
Second, we asked whether CARB's sleeper truck requirements properly
should be considered an operational control and thus not preempted by
section 209 of the Act. To the extent that CARB's sleeper truck
requirements should be treated as standards relating to the control of
emissions from new motor vehicles or engines or accompanying
enforcement procedures and require a full waiver from EPA, we sought
comment on whether the requirements meet the criteria for a full
waiver.
Third, with respect to CARB's alternative technology requirements,
EPA sought comment on the following specific questions: (1) Does CARB's
requirement that an APS using an internal combustion engine be
certified to meet either California off-road or federal nonroad
emission standards and test procedures meet the requirements for
finding that it is within-the-scope of the authorization EPA issued for
new nonroad engine standards, thus not requiring a full authorization?;
\24\ (2) If not, does CARB's requirement that an APS using an internal
combustion engine be certified to meet either California off-road or
federal nonroad emission standards and test procedures meet the
requirements for a full authorization?; (3) Does CARB's requirement
that a diesel-fueled APS engine be certified to the California or
federal 2007 and subsequent model year standards and meet one of three
other listed requirements \25\ meet the criteria for a full
authorization?; and (4) Are CARB's requirements pertaining to fuel-
fired heaters, batteries, fuel cells, power inverter/chargers for on-
shore power, and truck electrification preempted under section 209 of
the Clean Air Act, and if so, do they meet the requirements for waiver
under section 209(b) or authorization under section 209(e)?
---------------------------------------------------------------------------

\24\ 75 FR 8056 (February 23, 2010).
\25\ The additional requirements are one of the following: (a)
Exhaust routed into the truck's exhaust system and PM trap; (b) a
level 3 verified PM control strategy; or (c) use of other procedures
to demonstrate an equivalent level of emissions compliance.
---------------------------------------------------------------------------

As called out by those specific questions, EPA sought threshold
input on whether to treat various elements of CARB's Truck Idling
Requirements as conditions precedent, within the scope of previous
waivers and authorizations, not preempted by section 209, or in need of
a full waiver or authorization. We also sought substantive comment on
whether the various elements of CARB's Truck Idling Requirements meet
the applicable criteria for confirmation as conditions precedent,
within the scope, non-preemption, and full waiver or authorization.
In response to EPA's July 27, 2010 Federal Register notice, EPA
received three written comments and no request for a public hearing.
The written comments are from the American Trucking Associations
(``ATA''),\26\ the Owner-Operator Independent Drivers Association, Inc.
(``OOIDA''),\27\ and CARB.\28\
---------------------------------------------------------------------------

\26\ American Truck Associations (``ATA''), ``Docket ID No. EPA-
HQ-OAR-2010-0317,'' September 30, 2010, EPA-HQ-OAR-2010-0317-0017,
September 30, 2010 (hereinafter ``ATA Comments'').
\27\ Owner-Operator Independent Drivers Association Inc.
(``OOIDA''), ``Initial Comments of Owner-Operator Independent
Drivers Association & Request for Additional Time to Provide
Additional Comments,'' October 1, 2010 (hereinafter ``OOIDA
Comments'').
\28\ CARB, Additional Information to Support California's
Request for Waiver and Authorization Actions for California's 2008
Truck Idling Requirements, and Response to Comments Submitted by
Parties Opposing California's Waiver and Authorization Request;
Docket ID No. EPA-HQ-2010-0317,'' EPA-HQ-OAR-2010-0317-1109,
February 23, 2010 (hereinafter ``CARB Supplemental Comments'').
---------------------------------------------------------------------------

ATA's comments specifically oppose California's ``alternative
technology requirements,'' which establish in-use performance standards
for HDDV operators who use alternative technologies (e.g., auxiliary
power units) to supply power for truck cab or sleeper berth climate
control and/or other on-board accessories that otherwise would have
been generated by the continuous idling of the truck's main engine. ATA
comments that those requirements are not consistent with sections
202(a) and 209(e) of the Clean Air Act.
OOIDA's comments address issues it believes have been overlooked by
EPA, including ``CARB's delay in requesting EPA review of Truck Idling
Requirements without waiting for an EPA determination; CARB's premature
implementation and enforcement of those Requirements without waiting
for an EPA determination; and CARB's failure to consider the potential
adverse impact of these requirements on the health and welfare of the
affected truck drivers.'' OOIDA also suggested that the Truck Idling
Requirements may be preempted by federal law other than the Clean Air
Act. OOIDA also requested an additional forty-five days--until November
15, 2010--to fully evaluate a recent decision by the United States
Court of Appeals for the Ninth Circuit, Association of American
Railroads et. al. v. South Coast Air Quality Management District, et.
al., case number 07-55804.\29\ EPA did not formally extend the written
comment period pursuant to this request, but did communicate to OOIDA
that it would consider any written comments received before the Agency
reached its final decision. OOIDA did not submit any further comments
prior to EPA's final decision, published here today.
---------------------------------------------------------------------------

\29\ Association of American Railroads et. al. v. South Coast
Air Quality Management District, et. al., case number 07-55804 (9th
Cir. 2010), available at https://www.ca9.uscourts.gov/datastore/opinions/2010/09/15/07-55804.pdf.
---------------------------------------------------------------------------

CARB submitted additional information in the form of supplemental
comments to update its request in light of EPA's authorization of
California's new nonroad compression-ignition regulations, and
information regarding technological feasibility. CARB also responded to
EPA's request for comments, and the comments EPA received from ATA and
OOIDA. CARB's supplemental comments assert that ATA and OOIDA have
failed to meet their burden of proof for a denial. CARB further
requests that EPA grant California its requested waiver and
authorizations to adopt and enforce its Truck Idling Requirements.

II. Discussion

California's Truck Idling Requirements feature four general sets of
requirements: Those applicable to

[[Page 9243]]

new engines, those applicable to sleeper trucks, alternative technology
requirements, and labeling requirements.

A. California's New Engine Requirements

The new engine requirements imposed by California's Truck Idling
Requirements establish two compliance options for new California
certified 2008 and subsequent model year heavy-duty diesel engines
installed in trucks with a gross vehicle weight rating greater than
14,000 pounds. The first compliance option requires engine
manufacturers to install a system that automatically shuts down the
engine after five minutes of continuous idle operation. The second
compliance option is an optional NOX idling emission
standard of 30 grams per hour.
CARB presents, first, that the new engine requirements are akin to
operational controls on in-use vehicles and, accordingly, they are not
preempted by Clean Air Act section 209(b). Alternatively, CARB argues
that the new engine requirements are ``other conditions precedent'' to
initial sale, titling, or registration that fall within the scope of
the waiver of preemption EPA issued for California's 2007 and
subsequent model year heavy-duty diesel engine standards. Last, CARB
argues that should EPA determine that the new engine requirements
constitute standards relating to the control of emissions from new
motor vehicle engines, such requirements fall within the scope of
previous waivers of preemption. Thus, EPA must first determine what
type of control the California new engine requirements impose before
proceeding with an analysis of whether California meets the necessary
Clean Air Act requirements under section 209.
To address these issues, EPA asked the first set of questions in
the July 27, 2010 Federal Register notice. We asked whether we should
consider CARB's new engine requirements as non-preempted operational
controls, or as conditions precedent. In the alternative, we asked if
we determine that CARB's new engine requirements must be treated as
standards relating to the control of emissions or accompanying
enforcement procedures, whether they be subject to and meet the
criteria for EPA to confirm that they are within-the-scope of EPA's
waiver for new heavy-duty diesel engines for 2007 and subsequent model
years. To the extent the new engine requirements should be treated as
standards relating to the control of emissions or accompanying
enforcement procedures and require a full waiver from EPA, we asked
whether the requirements meet the full waiver criteria.
1. Application of Section 209(b) Waiver Criteria
EPA received no comments in response to the issues EPA raised for
comment with respect to California's new engine requirements.
Despite CARB's contentions, EPA has determined that California's
new engine requirements are standards relating to the control of
emissions that require a full waiver of preemption from EPA. CARB
believes that the United States Supreme Court's interpretation of
``standard relating to the control of emissions from new motor vehicles
or new motor vehicle engines'' in Engine Manufacturers Association v.
South Coast Air Quality Management District, 541 U.S. 246 (2004)
supports its position that the California new engine requirements are
not standards relating to the control of emissions. To the contrary,
EPA believes that the Supreme Court's interpretation supports the
conclusion that California's new engine requirements should be
considered as standards relating to the control of emissions. The
primary compliance option of the new engine requirements requires new
2008 and later model year heavy-duty diesel engines to be equipped with
idling shutdown systems. CARB presents that the primary compliance
option does not establish a numerical emission standard, and does not
require additional emission control devices or design features related
to the control of emissions. While it is clear that requiring a
shutdown system does not establish a numerical emission standard, it is
also clear that requiring manufacturers to design their engines with a
shutdown system to control truck idling emissions does impose a
requirement upon manufacturers, for the purpose of limiting emissions.
Even though this requirement imposes itself as a design requirement and
not as an emissions performance standard, it is nevertheless a
requirement related to emission reduction. Furthermore, the Supreme
Court in EMA v. South Coast explicitly contemplated that a ``design
feature related to the control of emissions'' would be considered a
standard relating to the control of emissions. Additionally,
California's optional NOX idling standard, as an alternative
compliance option, makes clear what the force and effect of the new
engine requirements is--to limit emissions from idling trucks by
imposing a requirement on new engines. Thus, EPA has determined that
California's new engine requirements are standards relating to the
control of emissions; and therefore, EPA has evaluated the new engine
requirements by application of the full waiver criteria.
CARB alternatively requested that EPA evaluate California's new
engine requirements by application of EPA's within-the-scope criteria.
However, the new engine requirements impose an additional design
requirement upon engine manufacturers, which is a ``new issue'' and
cautions against application of the within-the-scope criteria. CARB
believes its requirement that manufacturers include an engine shutdown
system does not present a ``new issue'' because it ``will only require
manufacturers to perform minor reprogramming of the software
incorporated in existing engine or vehicle computers, and will not
require any modifications to hardware.'' \30\ In contrast, EPA believes
that manufacturers existing designs do not factor into our analysis
here.\31\ EPA views the additional design requirement imposed upon
manufacturers as a new regulatory issue, which was not considered in
our previous waiver for California's 2007 and subsequent model year
heavy-duty diesel standards. Therefore, as stated above, we have
applied the full waiver criteria to California's request.
---------------------------------------------------------------------------

\30\ CARB Support Document at 31.
\31\ Manufacturers current designs and system capabilities are
more appropriately evaluated under the CAA section 209(b)(1)(C)
technological feasibility criterion.
---------------------------------------------------------------------------

2. California's Protectiveness Determination
Section 209(b)(1)(A) of the Clean Air Act requires EPA to deny a
waiver if the Administrator finds that California was arbitrary and
capricious in its determination that its State standards will be, in
the aggregate, at least as protective of public health and welfare as
applicable federal standards. When evaluating California's
protectiveness determination, EPA compares the stringency of the
California and federal standards at issue in a given waiver request.
That comparison is undertaken within the broader context of the
previously waived California program, which relies upon protectiveness
determinations that EPA previously found were not arbitrary and
capricious.
When California adopted its Truck Idling Requirements, the CARB
Board made its protectiveness finding in its Resolution 05-55.\32\ That
protectiveness

[[Page 9244]]

determination was made against the background of California's previous
protectiveness determination for its 2007 and subsequent model year
heavy duty diesel standards, which EPA previously found was not
arbitrary and capricious.\33\ Compared to the federal standards,
California's 2007 and subsequent model year heavy-duty diesel standards
are numerically equivalent. Furthermore, CARB asserts that it's Truck
Idling Requirements ``in no way reduce the stringency of either the
underlying exhaust emission standards or the associated test
procedures.'' \34\ Notably, the new engine requirements California is
imposing within its Truck Idling Requirements are an additional
requirement beyond that which is required by EPA's federal standards.
Thus, CARB presents that EPA has ``no basis for finding that CARB''
made its protectiveness determination arbitrarily or capriciously.\35\
---------------------------------------------------------------------------

\32\ CARB Resolution 05-55, EPA-HQ-OAR-2010-0008, ``Be It
Further Resolved that the Board hereby determines that the
regulations adopted herein will not cause California motor vehicle
emission standards, in the aggregate, to be less protective of the
public health and welfare than applicable federal standards.''
\33\ 70 FR 50322 (August 26, 2005).
\34\ CARB Support Document at 27.
\35\ CARB Supplemental Comments at 6.
---------------------------------------------------------------------------

No commenter expressed an opinion or presented any evidence
suggesting that CARB was arbitrary and capricious in making its above-
noted protectiveness findings. Therefore, based on the record, EPA
cannot find that California was arbitrary and capricious in its
findings that California's new engine requirements are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards.
3. California's Need for State Standards To Meet Compelling and
Extraordinary Conditions
Under section 209(b)(1)(B) of the Act, EPA cannot grant a waiver if
California ``does not need such State standards to meet compelling and
extraordinary conditions.'' To evaluate this criterion, EPA considers
whether California needs a separate motor vehicle emissions program to
meet compelling and extraordinary conditions.
Over the past forty years, CARB has repeatedly demonstrated the
need for its motor vehicle emissions program to address compelling and
extraordinary conditions in California.\36\ In its Resolution 05-55,
CARB affirmed its longstanding position that California continues to
need its own motor vehicle and engine program to meet its serious air
pollution problems. Likewise, EPA has consistently recognized that
California continues to have the same ``geographical and climatic
conditions that, when combined with the large numbers and high
concentrations of automobiles, create serious pollution problems.''
\37\ Furthermore, no commenter has presented any argument or evidence
to suggest that California no longer needs a separate motor vehicle
emissions program to address compelling and extraordinary conditions in
California. Therefore, EPA has determined that we cannot deny
California a waiver for its new engine requirements under section
209(b)(1)(B).
---------------------------------------------------------------------------

\36\ See, e.g., Approval and Promulgation of State
Implementation Plans; California--South Coast, 64 FR 1770, 1771
(January 12, 1999). See also 69 FR 23858, 23881-90 (April 30, 2004)
(designating 15 areas in California as nonattainment for the federal
8-hour ozone national ambient air quality standard).
\37\ 49 FR 18887, 18890 (May 3, 1984); see also 76 FR 34693
(June 14, 2011), 74 FR 32744, 32763 (July 8, 2009), and 73 FR 52042
(September 8, 2008).
---------------------------------------------------------------------------

4. Consistency With Section 202(a) of the Clean Air Act
Under section 209(b)(1)(C) of the Act, EPA must deny a California
waiver request if the Agency finds that California standards and
accompanying enforcement procedures are not consistent with section
202(a) of the Act. The scope of EPA's review under this criterion is
narrow. EPA has stated on many occasions that the determination is
limited to whether those opposed to the waiver have met their burden of
establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements
inconsistent with federal test procedures. Previous waivers of federal
preemption have stated that California's standards are not consistent
with section 202(a) if there is inadequate lead time to permit the
development of technology necessary to meet those requirements, giving
appropriate consideration to the cost of compliance within that time.
California's accompanying enforcement procedures would be inconsistent
with section 202(a) if the federal and California test procedures
conflict, i.e., if manufacturers would be unable to meet both the
California and federal test requirements with the same test vehicle.
California presents that its new engine requirements are currently
technologically feasible, with appropriate consideration given to cost,
and do not impose inconsistent certification requirements.\38\ First,
CARB presents information regarding the current technological
feasibility of the engine shutdown compliance option: ``The technology
needed to comply with the new engine shutdown system option presently
exists, and in fact has been widely available as a standard feature in
most commercially available on-road heavy-duty engines.'' \39\ CARB
notes that a number of manufacturers already include such technology in
their engines, but most fleet owners and operators do not activate it.
For manufacturers who did not include such technology in their engines,
CARB staff notes that only minor modifications would be needed. The
costs associated with modifications, as estimated by CARB staff, are
minimal--``$100 per engine to cover additional administrative costs and
minimal reprogramming costs.'' \40\ Next, CARB presents information
regarding the technological feasibility of the optional NOX
idling standard.\41\ Significantly, CARB notes that many manufacturers
have either already certified to the optional NOX standard
or intend to in future model years. These manufacturers have
implemented strategies to meet the optional NOX idling
standard without adding any additional hardware or modifications to
their emission control systems or components. Manufacturers have
certified to the standard merely by making modifications to their
existing software (e.g., by modifying exhaust gas recirculation rates
and/or the pulse of the fuel injectors during idle operating modes).
Last, CARB presents information regarding the effect of California's
new engine requirements on manufacturers' existing certification
requirements. CARB asserts that: ``Neither the new engine shutdown
system nor the optional NOX idling emission standard option
present any issues of test procedure inconsistency because there are no
analogous federal requirements.'' \42\ CARB also confirms that
manufacturers may conduct one set of tests to determine compliance with
both California and federal requirements.\43\
---------------------------------------------------------------------------

\38\ CARB Support Document at 27.
\39\ CARB Support Document at 28-29.
\40\ Id. at 28; see also CARB, ``Staff Report: Initial Statement
of Reasons,'' EPA-HQ-OAR-2010-0317-0005, (hereinafter ``ISOR''), at
37.
\41\ CARB Support Document at 30.
\42\ CARB Support Document at 31.
\43\ Id.
---------------------------------------------------------------------------

No commenter expressed any disagreement with these statements from
CARB, and no commenter presented any evidence opposing CARB's
assertions regarding technological feasibility, lead-time, and cost of
compliance. Therefore, EPA is unable to find that California's new
engine requirements are not technologically feasible within the

[[Page 9245]]

available lead-time, giving appropriate consideration to the cost of
compliance.
5. Full Waiver of Preemption Determination for California's New Engine
Requirements
After a review of the information submitted by CARB and other
parties to this proceeding, EPA finds that those opposing California's
request have not met the burden of demonstrating that a waiver for
California's new engine requirements should be denied based on any of
the three statutory criteria of section 209(b)(1). For this reason, EPA
finds that California's new engine requirements should receive a full
waiver of preemption.

B. California's Sleeper Truck Requirements

California's Truck Idling Requirements impose a new requirement on
the operators of sleeper berth equipped heavy-duty diesel vehicles.
Sleeper truck operators will now be required to manually shut off
engines after five minutes of continuous idling. To address CARB's
sleeper truck requirements, EPA asked the second set of questions in
the July 27, 2010 Federal Register notice. We asked whether CARB's
sleeper truck requirements properly should be considered an operational
control and thus not preempted by section 209 of the Act. To the extent
that CARB's sleeper truck requirements should be treated as standards
relating to the control of emissions from new motor vehicles or engines
or accompanying enforcement procedures and require a full waiver from
EPA, we sought comment on whether the requirements meet the criteria
for a full waiver.
1. California's Sleeper Truck Requirements Do Not Require a Waiver From
EPA
California asserts that the sleeper truck requirements are an in-
use operational control of motor vehicles and do not require a waiver
of preemption. Since the sleeper truck requirements only apply to in-
use motor vehicles, and Clean Air Act section 209(a) preemption only
applies to new motor vehicles and engines, CARB asserts that section
209(a) preemption does not apply to these requirements. Additionally,
CARB points towards section 209(d) of the Act, which states: ``Nothing
in this part shall preclude or deny to any State or political
subdivision thereof the right otherwise to control, regulate, or
restrict the use, operation, or movement of registered vehicles.'' Read
together, sections 209(a) and 209(d) make clear that operational
controls, such as idling limits directed towards the operator of the
vehicle, are not preempted and do not need a waiver of preemption
pursuant to section 209(b). EPA agrees with this analysis and does not
believe that in-use controls, such as idling limits, are preempted by
section 209(a). Therefore, California's sleeper truck requirements do
not require a waiver of preemption under section 209(b) of the Act.
2. Other Issues
OOIDA comments that the sleeper truck idling requirements will have
an adverse effect on the health and welfare of drivers. This comment is
inapplicable to EPA's analysis here, because as stated above, EPA has
found that the sleeper truck requirements are not preempted under
section 209(a). Therefore, EPA has no authority to evaluate
California's sleeper truck requirements. To the extent this comment
suggests that California's protectiveness determination for its
alternative technology requirements was arbitrary and capricious, we
have addressed that issue below.

C. California's Alternative Technology Requirements

CARB anticipated that truck operators would likely utilize
alternative technologies to power truck cabins, sleeper berths, and/or
other on-board accessories that previously would have been powered by
the truck's main engine. Such alternative technologies include internal
combustion engine powered alternative power sources (``APSs'') and
fuel-fired heaters. To account for the increased particulate matter
(PM) emissions that would be generated by inclusion of these
alternative technologies on heavy-duty diesel vehicles, CARB developed
alternative technology requirements. CARB's general alternative
technology requirement is that internal combustion engines used in APSs
must be certified to the California or federal nonroad emission
standards and test procedures applicable to the fuel type and
horsepower category of the engines. CARB also imposes specific
requirements for diesel-fueled APSs, dependent upon model year. For
2007 and later model year heavy-duty diesel trucks, a diesel-fueled APS
must comply with California or federal nonroad emission standards and
one of three additional requirements: (1) Route their exhaust into the
truck's exhaust system so that the APS's PM emissions are controlled by
the truck's PM trap; or (2) be equipped with a level 3 verified PM
control strategy (i.e., achieve an 85 percent PM reduction efficiency);
or (3) obtain advance CARB approval to use other procedures to
demonstrate an equivalent level of emission compliance. For 2006 and
older model year trucks, diesel-fueled APS need only comply with the
California or federal nonroad emission standards and test procedures
applicable to the horsepower category of the engines.
With respect to CARB's alternative technology requirements, in the
July 27, 2010 Federal Register notice, EPA sought comment on the
following specific questions: (1) Does CARB's requirement that an APS
using an internal combustion engine be certified to meet either
California off-road or federal nonroad emission standards and test
procedures meet the requirements for finding that it is within-the-
scope of the authorization EPA issued for new nonroad engine standards,
thus not requiring a full authorization?; \44\ (2) If not, does CARB's
requirement that an APS using an internal combustion engine be
certified to meet either California off-road or federal nonroad
emission standards and test procedures meet the requirements for a full
authorization?; and (3) Does CARB's requirement that a diesel-fueled
APS engine be certified to the California or federal 2007 and
subsequent model year standards and meet one of three other listed
requirements \45\ meet the criteria for a full authorization?
---------------------------------------------------------------------------

\44\ 75 FR 8056 (February 23, 2010).
\45\ The additional requirements are one of the following: (a)
Exhaust routed into the truck's exhaust system and PM trap; (b) a
level 3 verified PM control strategy; or (c) use of other procedures
to demonstrate an equivalent level of emissions compliance.
---------------------------------------------------------------------------

1. Application of Full Authorization Analysis
With respect to the threshold question EPA asked as to which waiver
analysis to apply to CARB's APS requirements, EPA received no comments.
CARB asserts that because its APS requirements are linked to
preexisting federal or California standards and certification
requirements, the new APS requirements are within the scope of the
prior authorizations for these engines. However, EPA does not believe
that a within-the-scope analysis is appropriate in this circumstance.
In the past, EPA has reviewed amendments to previously waived or
authorized California standards for a determination of whether those
amendments were within the scope of the previously waived or authorized
standards. Here though, the APS requirements as imposed by California's
Truck Idling Requirements are not amendments, but new regulations. Even
though the APS

[[Page 9246]]

requirements link to and rely upon previously authorized standards,
they are newly applicable to all APS engines used in on-highway heavy-
duty diesel vehicles, regardless of the model year of the engine.
Because this is an additional requirement beyond that contemplated in
previous nonroad and on-highway authorizations, EPA cannot apply its
within-the-scope construct. Thus, we have reviewed all of California's
APS requirements by application of our full authorization analysis.
2. California's Protectiveness Determination
Section 209(e)(2)(i) of the Act instructs that EPA cannot grant an
authorization if the agency finds that CARB was arbitrary and
capricious in its determination that its standards are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards. CARB's Board made a protectiveness
determination in Resolution 05-55, finding that California's Truck
Idling Requirements will not cause the California emission standards,
in the aggregate, to be less protective of public health and welfare
than applicable federal standards.\46\ Furthermore, CARB asserts that
``there is no question'' its APS requirements are at least as
protective of public health and welfare as applicable federal
standards. To make this assertion, CARB highlights that EPA is
authorized to regulate new nonroad engines, and only California may
adopt emission standards and other emission-related requirements for
in-use nonroad engines.\47\ Accordingly, CARB points out that EPA has
not adopted any emission standards or other requirements applicable to
in-use APS engines.
---------------------------------------------------------------------------

\46\ CARB Resolution 05-55, EPA-HQ-OAR-2010-0008, ``Be It
Further Resolved that the Board hereby determines, pursuant to
section 209(e)(2) of the federal Clean Air Act, that the emission
standards and other requirements related to the control of emissions
adopted as part of this Airborne Toxic Control Measure are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards * * * ''
\47\ CARB Support Document at 34; see EMA v. EPA, 88 F.3d 1075
at 1089-1090.
---------------------------------------------------------------------------

EPA received one comment challenging California's protectiveness
determination with respect to the APS requirements. OOIDA comments that
``in determining whether CARB's sleeper truck and alternative power
source requirements should be approved, under any analysis, EPA should
take care to fully consider and balance against the benefits to be
gained by reducing emissions from idling sleeper trucks, the very real
adverse impact such a requirement would have on the health and welfare
of the operators of those trucks and negative effects on highway safety
from truck operators not being properly rested.'' \48\ CARB counters
that ``OOIDA's argument fails to present `clear and compelling'
evidence that California's protectiveness determinations are arbitrary
and capricious; instead, it is only based on OOIDA's assumptions
regarding the financial status and individual business decisions of
numerous affected entities.'' \49\ EPA's review of California's
protectiveness determination is limited under section 209(e)(2)(i). The
Agency's review is highly deferential to California; the Clean Air Act
does not leave room for EPA to second-guess the wisdom of California's
policy. Contrary to OOIDA's request, it is not EPA's role in this
context to consider and balance the emissions benefits against the
potential negative impacts on operator health and welfare and highway
safety. Instead, EPA is charged with determining whether California
made its protectiveness determination arbitrarily or capriciously.
Furthermore, for a number of reasons, OOIDA has not met its burden to
show that California should be denied authorization because it has been
arbitrary and capricious in making its protectiveness determination.
First, OOIDA's comments are primarily directed at California's sleeper
truck requirements, which as discussed above are not even subject to
the section 209(a) waiver and section 209(e) authorization provisions.
Second, the issues OOIDA raises with respect to California's
protectiveness determination are not the type of issues that EPA
traditionally considers as part of its evaluation of California's
protectiveness determination. When evaluating California's
protectiveness determination, EPA traditionally compares the stringency
of the California and federal standards at issue in a given waiver or
authorization request. That comparison is undertaken within the broader
context of the previously waived California program, which relies upon
protectiveness determinations that EPA previously found were not
arbitrary and capricious. EPA refrains from conducting a more detailed
examination of the secondary or tertiary effects California standards
may have on health and the environment. Such an undertaking would
seemingly go beyond the review that Congress intended.\50\ Considering
OOIDA's comments within the context of EPA's traditional protectiveness
evaluation provides no additional opportunity to question California's
protectiveness determination because OOIDA provides no indication that
California's standards are less stringent than comparable federal
standards. Third, even if we were to take into account OOIDA's
concerns, OOIDA's secondary ``protectiveness'' concerns to do not
present sufficient evidence to meet its burden of proof. OOIDA does not
present any factual evidence or analysis of the specific health and
welfare effects they expect to be caused by California's idling
restrictions. Such evidence and analysis would be necessary to show
that California's standards are less protective of health and welfare.
Additionally, OOIDA does not dispute that California has presumed and
allowed several avenues for drivers to use climate control and
accessories during idling, particularly through the use of alternative
power units. California also notes, in response to OOIDA, that it has
provisions to allow extended idling during periods of extreme weather.
Also, while OOIDA suggests that California's APS requirements are too
expensive (which is more an issue of technological feasibility,
discussed below, not protectiveness), there is no question that
California allows the use of power to deal with climate control in
sleeper car cabins. In sum, based on full consideration and evaluation
of the totality of information CARB has supplied and the assertions
OOIDA has presented, EPA cannot find that California's protectiveness
determination was arbitrary and capricious.
---------------------------------------------------------------------------

\48\ OOIDA Comments at 4.
\49\ CARB Supplemental Comments at 10.
\50\ MEMA I, 627 F.2d at 1121.
---------------------------------------------------------------------------

Therefore, based on the record before us, EPA finds that opponents
of the authorization have not shown that California was arbitrary and
capricious in its determination that its standards are, in the
aggregate, at least as protective of public health and welfare as
applicable federal standards.

B. Need for California Standards To Meet Compelling and Extraordinary
Conditions

Section 209(e)(2)(ii) of the Act instructs that EPA cannot grant an
authorization if the agency finds that California ``does not need such
California standards to meet compelling and extraordinary conditions *
* *.'' This criterion restricts EPA's inquiry to whether California
needs its own mobile source pollution program to meet compelling and
extraordinary conditions, and not whether any given standards are
necessary to meet such

[[Page 9247]]

conditions.\51\ As discussed above, for over forty years CARB has
repeatedly demonstrated the need for its motor vehicle emissions
program to address compelling and extraordinary conditions in
California. In its Resolution 05-55, CARB affirmed its longstanding
position that California continues to need its own motor vehicle and
engine program to meet its serious air pollution problems. Likewise,
EPA has consistently recognized that California continues to have the
same ``geographical and climatic conditions that, when combined with
the large numbers and high concentrations of automobiles, create
serious pollution problems.'' Furthermore, no commenter has presented
any argument or evidence to suggest that California no longer needs a
separate motor vehicle emissions program to address compelling and
extraordinary conditions in California. Therefore, EPA has determined
that we cannot deny California a waiver for its new engine requirements
under section 209(e)(2)(ii).
---------------------------------------------------------------------------

\51\ See 74 FR 32744, 32761 (July 8, 2009); 49 FR 18887, 18889-
18890 (May 3, 1984).
---------------------------------------------------------------------------

C. Consistency With Section 209 of the Clean Air Act

Section 209(e)(2)(iii) of the Act instructs that EPA cannot grant
an authorization if California's standards and enforcement procedures
are not consistent with section 209. As described above, EPA has
historically evaluated this criterion for consistency with sections
209(a), 209(e)(1), and 209(b)(1)(C).
1. Consistency With Section 209(a)
To be consistent with section 209(a) of the Clean Air Act,
California's APS requirements must not apply to new motor vehicles or
engines. California's APS requirements apply to nonroad engines, not
new on-highway motor vehicles or engines. CARB presents that although
the APS are used on on-highway heavy-duty diesel vehicles and engines,
they are auxiliary engines and are not used to propel motor vehicles or
engines. CARB further states that because APS are regulated as nonroad
engines, they fall within the regulatory definition of nonroad engine,
and are, thus, consistent with section 209(a). No commenter presented
otherwise; therefore, EPA cannot deny California's request on the basis
that California's APS requirements are not consistent with section
209(a).
2. Consistency With Section 209(e)(1)
To be consistent with section 209(e)(1) of the Clean Air Act,
California's APS requirements must not affect new farming or
construction vehicles or engines that are below 175 horsepower, or new
locomotives or their engines. CARB presents that APS engines are not
used in locomotives and are not primarily used in farm and construction
equipment vehicles. No commenter presented otherwise; therefore, EPA
cannot deny California's request on the basis that California's APS
requirements are not consistent with section 209(e)(1).
3. Consistency With Section 209(b)(1)(C)
The requirement that California's standards be consistent with
section 209(b)(1)(C) of the Clean Air Act effectively requires
consistency with section 202(a) of the Act. California standards are
inconsistent with section 202(a) of the Act if there is inadequate
lead-time to permit the development of technology necessary to meet
those requirements, giving appropriate consideration to the cost of
compliance within that time. California's accompanying enforcement
procedures would also be inconsistent with section 202(a) if the
federal and California test procedures were not consistent. The scope
of EPA's review of whether California's action is consistent with
section 202(a) is narrow. The determination is limited to whether those
opposed to the authorization or waiver have met their burden of
establishing that California's standards are technologically
infeasible, or that California's test procedures impose requirements
inconsistent with the federal test procedure.\52\
---------------------------------------------------------------------------

\52\ MEMA I, 627 F.2d at 1126.
---------------------------------------------------------------------------

a. Technological Feasibility
Congress has stated that the consistency requirement of section
202(a) relates to technological feasibility.\53\ Section 202(a)(2)
states, in part, that any regulation promulgated under its authority
``shall take effect after such period as the Administrator finds
necessary to permit the development and application of the requisite
technology, giving appropriate consideration to the cost of compliance
within such period.'' Section 202(a) thus requires the Administrator to
first determine whether adequate technology already exists; or if it
does not, whether there is adequate time to develop and apply the
technology before the standards go into effect. The latter scenario
also requires the Administrator to decide whether the cost of
developing and applying the technology within that time is feasible.
Previous EPA waivers are in accord with this position.\54\ For example,
a previous EPA waiver decision considered California's standards and
enforcement procedures to be consistent with section 202(a) because
adequate technology existed as well as adequate lead-time to implement
that technology.\55\ Subsequently, Congress has stated that, generally,
EPA's construction of the waiver provision has been consistent with
congressional intent.\56\
---------------------------------------------------------------------------

\53\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
\54\ See, e.g., 49 FR 1887, 1895 (May 3, 1984); 43 FR 32182,
32183 (July 25, 1978); 41 FR 44209, 44213 (October 7, 1976).
\55\ 41 FR 44209 (October 7, 1976).
\56\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
---------------------------------------------------------------------------

With respect to the general APS requirements, CARB presents that
the technological feasibility is readily apparent. CARB believes this
because the general APS requirement is that the APS complies with the
California or federal nonroad emission standards and test procedures
applicable for its fuel type and power category. Therefore, EPA has
already determined the technological feasibility for these standards,
either in its own federal rulemaking or by authorizing the underlying
California standards in a previous authorization.\57\ No commenter
challenges the technological feasibility of California's general APS
requirements. Thus, EPA cannot deny California's request on the basis
of technological feasibility.
---------------------------------------------------------------------------

\57\ 60 FR 37440 (July 20, 1995), 65 FR 69763 (November 20,
2000), 68 FR 65702 (November 21, 2003), 71 FR 75536, and 75 FR 8056
(February 23, 2010).
---------------------------------------------------------------------------

With respect to the specific APS requirements for diesel APSs, CARB
presents that each option is technologically feasible in the specified
lead-time. Broadly, CARB asserts that ``numerous technologies currently
exist that can be used to comply with these requirements, including
routing the exhaust from an APS into the exhaust system of the main
engine, battery electric APSs, thermal energy storage systems, and on-
shore electrical power infrastructures at truck stops.'' \58\ CARB also
presents information regarding the technological feasibility of each of
its compliance options. For the first option (routing a diesel APS'
exhaust upstream of the main engine's diesel particulate trap), CARB
provided information establishing technological feasibility in its
Initial Statement of Reasoning, which went unchallenged in its Final
Statement of Reasoning.\59\ CARB also

[[Page 9248]]

represents that at least one manufacturer applied for certification of
a fully integrated APS and truck exhaust system for the 2008 model
year.\60\ For the second option (inclusion of a CARB-verified, level 3
PM control), CARB presented in its initial May 9, 2008 support document
that it had several verification applications, and that the technology
was feasible.\61\ Since that time, CARB has conditionally verified
three level 3 PM control strategies that can be applied to APSs.\62\
For the third option (an equivalent compliance strategy), CARB provides
several currently available technologies that are acceptable
alternatives to the first two compliance options, including battery
powered APSs, thermal energy storage systems, truck stop
electrification, and off-board power infrastructure.\63\ For each of
the options for compliance with the specific requirements for diesel
APSs, CARB asserts that it gave appropriate consideration to cost of
compliance within the lead-time provided.
---------------------------------------------------------------------------

\58\ CARB Supplemental Comments at 4.
\59\ CARB, ``Staff Report: Initial Statement of Reasons,'' EPA-
HQ-OAR-2010-0317-0005; CARB, ``Final Statement of Reasons,'' EPA-HQ-
OAR-2010-0317-0010 (hereinafter ``FSOR'').
\60\ CARB Support Document at 40.
\61\ CARB Support Document at 42.
\62\ CARB Supplemental Comments at 4.
\63\ CARB Support Document at 44.
---------------------------------------------------------------------------

In its comments, OOIDA expresses concerns related to the cost of
APSs on truck drivers. OOIDA believes that faced with the added expense
of an APS, truck drivers will decide not to invest in APSs and
``instead subject themselves to unhealthy and unsafe cab temperatures
and conditions when hauling cargo in [California].'' \64\ Section
202(a) consistency calls for a limited review of technological
feasibility, including a cost analysis of the cost of new technology,
if technology does not currently exist; section 202(a) does not allow
EPA to conduct a more searching review of whether the costs are
outweighed by the overall benefits of the California regulations. In
this case, APS technologies are in existence and are being used in
actual operation. In addition, CARB responds to OOIDA's cost concerns
in its supplemental comments.\65\ First, CARB points out that its Truck
Idling Regulations allow truck drivers to override idling shutoff
systems during extreme weather conditions. More specifically, CARB
points towards its administrative record for support of its cost
analysis. During the California rulemaking, CARB staff determined that
``the capital costs of [APS] technology could be recouped by truck
owners or operators in as few as two and a half years, due to cost
savings resulting from reduced fuel and truck maintenance costs.'' \66\
CARB also relies on its APS cost estimates and response to comments
regarding compliance costs.\67\ CARB's rulemaking record with regard to
cost effectively rebuts OOIDA's assertion that CARB ``simply assumes
that all drivers have the ability to invest thousands of dollars in
anti-idling equipment * * *.'' (emphasis added). In any case, while
OOIDA's comments may be relevant to whether an operator would choose to
add the APS, they are not relevant to whether APS technologies are
infeasible. As discussed above, these technologies are being used in
practice and are clearly feasible.
---------------------------------------------------------------------------

\64\ OOIDA Comments at 3.
\65\ CARB Supplemental Comments at 10-11.
\66\ CARB Supplemental Comments at 11.
\67\ Id.; see ISOR Section VII and FSOR at 49-54.
---------------------------------------------------------------------------

EPA did not receive any other comments suggesting that CARB's
standards and test procedures are technologically infeasible.
Consequently, based on the record, EPA cannot deny California's
authorization based on technological infeasibility.
b. Consistency of Certification Procedures
California's standards and accompanying enforcement procedures
would also be inconsistent with section 202(a) if the California test
procedures were to impose certification requirements inconsistent with
the federal certification requirements. Such inconsistency means that
manufacturers would be unable to meet both the California and federal
testing requirements using the same test vehicle or engine.\68\
---------------------------------------------------------------------------

\68\ See, e.g., 43 FR 32182 (July 25, 1978).
---------------------------------------------------------------------------

CARB presents that none of the APS requirements pose any
inconsistency as between California and federal test procedures. First,
CARB asserts that its general APS requirements do not modify the test
procedures specified for certifying a California or federal nonroad
engine.\69\ Second, CARB asserts that none of its three options to meet
its APS requirements specific to diesel APS raise any issue with regard
to test procedure consistency. For option 1, CARB again asserts that it
does not alter test procedures specified for certifying a California or
federal nonroad engine.\70\ For options 2 and 3, CARB additionally
points out no incompatibility issue can arise as between federal and
California test procedures because EPA has no comparable federal
standards or test procedures for CARB to conflict with.\71\
---------------------------------------------------------------------------

\69\ CARB Support Document at 38.
\70\ CARB Support Document at 40.
\71\ CARB Support Document at 45.
---------------------------------------------------------------------------

EPA received no comments suggesting that CARB's APS requirements
pose a test procedure consistency problem. Therefore, based on the
record, EPA cannot find that CARB's testing procedures are inconsistent
with section 202(a). Consequently, EPA cannot deny CARB's request based
on this criterion.
4. Other Issues
In its comments, ATA asserts that because California's APS
requirements (those specific to diesel APSs on 2007 and subsequent
model year heavy-duty diesel vehicles) apply to new diesel engines,
they circumvent the consistency criteria of the Clean Air Act. ATA does
not reference any of the sections of the Act which EPA has historically
evaluated (i.e., sections 209(a), 209(e)(1), and 209(b)(1)(C));
instead, ATA generally challenges California's ability to regulate APSs
as inconsistent with federal standards. However, California's ability
to regulate APSs as either new or in-use engines, and depart from
federal standards--is clearly grounded in section 209 of the Clean Air
Act. California may regulate new nonroad engines pursuant to section
209(e)(2)'s authorization provision; and section 209(e) impliedly
allows California to regulate in-use nonroad engines. Additionally, as
CARB points out, ATA's reliance on Allway Taxi, Inc. v. City of New
York, is misplaced.\72\ Allway Taxi concerned whether New York City
could require emission controls for taxis in use. Those emission
controls had not received a waiver of preemption, as New York City
cannot receive one directly and at the time could not promulgate
standards identical to California's. The court ultimately found that
New York City could promulgate those emission controls, although noting
that controls that took effect ``the moment after a new car is bought
and registered * * * would be an obvious circumvention of the Clean Air
Act.'' However, California has the authority to request a waiver of
preemption (or authorization, for nonroad engines) for its standards
under the Clean Air Act, and EPA has the authority to grant such
request under section 209. Allway Taxi is not relevant

[[Page 9249]]

to this separate authority. It is this separate authority that is the
subject of this proceeding. Furthermore, EPA's decision with respect to
California's Truck Idling Requirements is circumscribed by the waiver
criteria set forth in sections 209(b) and 209(e) of the Act. ATA's
argument appears more directed at its policy goal of uniform idling
regulations, but does not comport with the section 209 criteria, nor
does it call into question any of EPA's section 209 analysis. Congress
has provided a mechanism for California to have standards that are more
stringent than those in other states, and ATA's argument seems to
neglect this clear authority.
---------------------------------------------------------------------------

\72\ CARB Supplemental Comments at 12. (``Allway Taxi primarily
addressed the issue of whether states and localities that are
preempted by the Clean Air Act from regulating new motor vehicles
could nevertheless regulate emissions from in-use motor vehicles.
That issue is clearly distinguishable from California's authority to
adopt and to enforce standards for the nonroad engines in diesel-
powered APSs. Unlike New York, California is expressly authorized by
Congress to regulate both new and in-use nonroad engines (that are
not conclusively preempted by section 209(e)(1) of the CAA) in
diesel-powered APSs.'')
---------------------------------------------------------------------------

ATA also contends that EPA cannot grant a new authorization for
California's APS requirements (again, those specific to diesel APSs on
2007 and subsequent model year heavy-duty diesel vehicles) because
``CARB has not complied with the lead time and stability requirements
of section 202(a)(3)(C)'' of the Clean Air Act. This comment also does
not comport with the section 209 criteria. California must take lead-
time into account, and EPA must consider lead-time when evaluating
California's regulations pursuant to section 209(e)'s consistency
requirements. However, the lead-time inquiry EPA undertakes relates to
technological feasibility. Specifically, consistency with section
202(a) requires the Administrator to first determine whether adequate
technology already exists; or if it does not, whether there is adequate
time to develop and apply the technology before the standards go into
effect.\73\ Congress has stated that, generally, this construction
accords with congressional intent.\74\ With respect to California's
specific APS requirements for diesel APSs used on 2007 and later model
year heavy-duty diesel vehicles, California demonstrated that all three
compliance options are currently technologically feasible. No party--
including ATA--presented otherwise. EPA then has no further inquiry
into lead-time, because no additional requirement is imposed by the
section 209 criteria.
---------------------------------------------------------------------------

\73\ EPA notes that even if the language in section 202(a)(1)(C)
were relevant to its consistency analysis, that section by its own
terms applies only to standards applicable to emissions from new
heavy-duty on-highway motor vehicle engines, not the nonroad engines
being regulated by California.
\74\ H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 301 (1977).
---------------------------------------------------------------------------

5. Authorization Determination for California's APS Requirements
After a review of the information submitted by CARB and other
parties to this proceeding, EPA finds that those opposing California's
request have not met the burden of demonstrating that a waiver for
California's APS requirements should be denied based on any of the
three statutory criteria of section 209(e)(2). For this reason, EPA
finds that California's APS requirements should be authorized.

D. Fuel-Fired Heater Requirements

California's Truck Idling Requirements also impose emission
requirements on fuel-fired heaters. Fuel-fired heaters provide heat to
truck cabs or sleeper berths and/or preheat engine blocks during cold
weather. Fuel-fired heaters on 2007 and later model year trucks
operating in California may now only operate fuel-fired heaters that
comply with California's second generation of low emission vehicle (LEV
II) regulations.
With respect to CARB's fuel-fired heater requirements, in the July
27, 2010 Federal Register notice, EPA sought comment on the following
question: Are CARB's requirements pertaining to fuel-fired heaters,
batteries, fuel cells, power inverter/chargers for on-shore power, and
truck electrification preempted under section 209 of the Clean Air Act,
and if so, do they meet the requirements for waiver under section
209(b) or authorization under section 209(e)?
CARB presents that its fuel-fired heater requirements are not
preempted and, accordingly, do not require an authorization.\75\ CARB
asserts that because fuel-fired heaters are neither nonroad engines nor
vehicles, they are not subject to section 209(e) preemption. EPA
received no comments suggesting that CARB's fuel-fired heater
requirements are subject to section 209(e) preemption. EPA confirms
that fuel-fired heaters are not nonroad engines or vehicles, and are
therefore not preempted under section 209(e) of the Clean Air Act.
---------------------------------------------------------------------------

\75\ CARB Support Document at 45.
---------------------------------------------------------------------------

E. California's Truck Idling Labeling Requirements

Engine manufacturers, original equipment manufacturers (OEMs), and
internal combustion APSs manufacturers, as applicable, are required to
produce and affix permanent labels to the hood of the truck. These
labels are intended to assist CARB enforcement staff in clearly and
easily identifying diesel trucks that comply with the California Truck
Idling Requirements. As stated above, EPA is today issuing a waiver of
preemption for the new engine requirements and an authorization for the
APS requirements. California's engine and optional NOX
idling labeling requirements, which accompany the new engine
requirements, are therefore included in the waiver of preemption for
the new engine requirements. Similarly, California's auxiliary power
system labeling requirements, which accompany the APS requirements, are
therefore included in the authorization for the APS requirements.

F. Other Issues

OOIDA's comments present two other issues that generally challenge
California's Truck Idling Requirements. First, OOIDA asserts that CARB
should be prohibited from enforcing its Truck Idling Requirements until
EPA approves them. Second, OOIDA asserts that federal laws other than
the Clean Air Act may preempt California's Truck Idling Requirements.
As EPA has stated on numerous occasions, sections 209(b) and 209(e) of
the Clean Air Act limit our authority to deny California requests for
waivers and authorizations to the three criteria listed therein. As a
result, EPA has consistently refrained from denying California's
requests for waivers and authorizations based on any other
criteria.\76\ In instances where the U.S. Court of Appeals has reviewed
EPA decisions declining to deny waiver requests based on criteria not
found in section 209(b), the Court has upheld and agreed with EPA's
determination.\77\ Neither of the issues OOIDA raises is among--or fits
within the confines of--either explicitly or implicitly, the criteria
listed under sections 209(b) and 209(e).\78\ Therefore, in considering
California's Truck Idling Requirements, EPA has not considered these
issues.
---------------------------------------------------------------------------

\76\ See, e.g., 74 FR 32744, 32783 (July 8, 2009).
\77\ See Motor and Equipment Manufacturers Ass'n v. Nichols, 142
F.3d 449, 462-63, 466-67 (DC Cir.1998), Motor and Equipment
Manufacturers Ass'n v. EPA, 627 F.2d 1095, 1111, 1114-20 (DC Cir.
1979).
\78\ OOIDA may raise these issues in a direct challenge to
California's regulations in other forums, but these issues are not
relevant to EPA's limited review under section 209.
---------------------------------------------------------------------------

III. Decision

The Administrator has delegated the authority to grant California
section 209(b) waivers of preemption and section 209(e) authorizations
to the Assistant Administrator for Air and Radiation. After evaluating
CARB's Truck Idling Requirements, CARB's submissions, and the public
comments from ATA and OOIDA, EPA is taking the following actions.
First, EPA is granting a waiver of preemption to California for its new
engine requirements. Second, EPA is granting

[[Page 9250]]

an authorization to California for its auxiliary power system
requirements.
My decision will affect not only persons in California, but also
manufacturers outside the State who must comply with California's
requirements in order to produce vehicles for sale in California. For
this reason, I determine and find that this is a final action of
national applicability for purposes of section 307(b)(1) of the Act.
Pursuant to section 307(b)(1) of the Act, judicial review of this final
action may be sought only in the United States Court of Appeals for the
District of Columbia Circuit. Petitions for review must be filed by
April 16, 2012. Judicial review of this final action may not be
obtained in subsequent enforcement proceedings, pursuant to section
307(b)(2) of the Act.

IV. Statutory and Executive Order Reviews

As with past authorization and waiver decisions, this action is not
a rule as defined by Executive Order 12866. Therefore, it is exempt
from review by the Office of Management and Budget as required for
rules and regulations by Executive Order 12866.
In addition, this action is not a rule as defined in the Regulatory
Flexibility Act, 5 U.S.C. 601(2). Therefore, EPA has not prepared a
supporting regulatory flexibility analysis addressing the impact of
this action on small business entities.
Further, the Congressional Review Act, 5 U.S.C. 801, et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, does not apply because this action is not a rule for purposes of
5 U.S.C. 804(3).

Dated: February 8, 2012.
Gina McCarthy,
Assistant Administrator, Office of Air and Radiation.
[FR Doc. 2012-3690 Filed 2-15-12; 8:45 am]
BILLING CODE 6560-50-P

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